("lass 




Book ' f •'! ^f 7 



l^KKSIvNTi;!) BY 



The Star 0/ Empire 



By ARCHIBALD HENDERSON 




ISAAC SHELBY 

First Governor of Kentucky 



The Star of Empire 



Phases of the 

Westward Movement in the 

old Southwest 



By 
ARCHIBALD HENDERSON, M.A., Ph.D., D.C.L. 

Member of the American Historical Association, Mississippi Valley 

Historical Association, Ohio Valley Historical 

Association, etc., etc. 



^ 



lPfU^,.^C^ /^r-^ 




1919 

THE SEEMAN PRINTERY 

DURHAM. N. C. 



I. -I A- 



^/' 



INTRODUCTION 

NORTH CAROLINA AND KENTUCKY 

In the epic movement of American expansion, which 
found its true inauguration in pioneer advance and its true 
romance in border struggle, North Carolina and Kentucky 
are united with indissoluble bonds. Three such men as Daniel 
Boone, Richard Henderson, and Isaac Shelby — Boone, the ex- 
plorer and Indian fighter ; Henderson, the colonizer and law- 
giver; Shelby, the soldier and statesman — flowering at a 
single historical moment out of the life of North Carolina en- 
dow her with a rare distinction as a creative force in west- 
ward expansion. Kentucky would be sorely impoverished, shorn 
of the greater measure of the incomparable romance and won- 
der of her settlement, rude beginnings, and first steps in national 
statehood if bereft of North Carolina's epochal contribution: 
the exploring instinct of Christopher Gist, the pioneering 
genius of Daniel Boone, the strenuous leadership of Isaac 
Shelby, the colonizing spirit of Richard Henderson, the ex- 
pansionist ideals of the canny Scots, James Hogg and William 
Johnston; of that sire of the "Great Pacificator," Jesse Ben- 
ton ; of the Harts, Thomas, Nathaniel, and David ; the Hen- 
dersons, Samuel, Nathaniel, and Pleasant ; the Boones, Squire 
and Jesse; Richard Calloway, Felix Walker, John Luttrell, 
John Williams, John Gray Blount, Leonard Henley Bullock. 
William Bailey Smith, and others less spectacular in their 
achievements yet little less important. They were the crest 
and foremost fringe of that mobile wave which welled up 
from the fountain source of American liberty, the ancient 
colony of North Carolina, swept irresistibly through the "high- 
swung gateway" of the Cumberland, and held the fair region 
of the trans-Alleghany within the circle of its protecting bar- 
rier until Kentucky had weathered the storms of border war- 
fare and been swept triumphantly into a union of free and 
independent states. 

In writing the history of national development, it should 
continually be borne in mind that not one, but two movements 



4 The Star of Empire 

were proceeding simultaneously along parallel lines. On the 
eastern slope, from the Alleghanies to the Atlantic, there was 
going forward the struggle of the Continental armies to ex- 
haust and defeat the martial power of Great Britain. But 
simultaneously with this great dramatic conflict, of the more 
or less conventional military type, was occurring that guerrilla 
warfare and border struggle — with nature, with the wilder- 
ness, with a savage foe, with Great Britain — which was to 
eventuate, on the conclusion of the titanic struggle, in the 
addition of an imperial area of western territory to the do- 
main of the Republic. If the sword and the musket were the 
symbols of the martial combat on the eastern slope, the sym- 
bols of pioneer struggle and advance in the western wilder- 
ness were the rifle and the tomahawk, the axe and the sur- 
veyor's chain. 

In the present volume, the relations of North Carolina to 
Kentucky in the earlier phases of westward expansion in the 
Old Southwest will be set forth. This story will largely 
centre about the career of two great men — Isaac Shelby, sur- 
veyor, hero of three battles in three wars, and first executive 
of the commonwealth of Kentucky; and Richard Henderson, 
jurist, pioneer, expansionist, and president of the Colony of 
Transylvania. In making a study from this new angle, fresh 
light is thrown upon this little appreciated and imperfectly un- 
derstood movement of westward expansion, which was ul- 
timately to work such a profound and far-reaching effect upon 
the destiny of the nation. 



THE STAR OF EMPIRE 

PHASES OF THE WESTWARD MOVEMENT IN THE 
OLD SOUTHWEST 



CHAPTER I 

The Southwestward Movement — The Shelbys 
As late as the first quarter of the eighteenth century, the 
American settlements were largely confined to a narrow strip 
along the Atlantic coast, with occasional isolated settlements 
further in the interior. There were two main zones of settle- 
ment : the Tidewater section and the Piedmont region. Be- 
cause of the great barrier of the mountain system, it was 
long before a way to the west was found. 

Settlement progressed in two directions — westward from 
the coast, and southwestward, beginning in Maryland, New 
Jersey, and Pennsylvania, and extending along the broad 
terraces to the east of the Appalachian range. This second 
streaming of the population thrust into the Piedmont region 
a class of people differing in spirit and in tendency from their 
more aristocratic and complacent neighbors to the east. These 
settlers of the Valley of Virginia and the Carolina Piedmont 
were the first pioneers of the Old Southwest. In the second 
quarter of the century, in the Valley of Virginia free grants 
of a thousand acres per family were being made ; and in the 
Piedmont region of North Carolina the proprietary of Lord 
Granville through his agents was disposing of lands, in six 
hundred and forty acre tracts, at trivial cost, and even making 
large free grants on the condition of seating a certain propor- 
tion of settlers. It was undoubtedly the rich lure of these 
cheap and even free lands in Virginia and North Carolina 
which set up the vast southwestwardly exodus in the second 
and third quarters of the century. "Inhabitants flock in here 
daily," wrote Governor Gabriel Johnston, of North Carolina, 
in 1750, "mostly from Pensilvania and other parts of America, 
who are overstocked with people and some directly from Eu- 

(5) 



6 The Star o^ Empiri; 

rope, they commonly seat themselves towards the West, and 
have got near the mountains." Squire Boone, the father of 
the great pioneer, removed with his entire family from Penn- 
sylvania to Virginia and thence to North Carolina in the spring 
of 1750. Samuel Henderson, the father of the jurist-pioneer, 
removed even earlier from Hanover County, Virginia, to what 
was soon to be Granville County, North Carolina — at some 
time prior to 1742. It is believed the immigrant ancestors of 
the Shelby family settled in Maryland about the year 1730; 
and the earliest surveys and grants to Evan Shelby, junior 
and senior, make it reasonably certain that the Shelbys re- 
sided continuously in Maryland from 1739 or earlier until 1771 
or 1772. About this time (1771-1772), the Shelby connection 
removed to the Holston country in that twilight zone of the 
debatable ground between North Carolina and Virginia. 
Evan Shelby settled with his family on the site of the present 
Bristol, Tennessee. 

On December 11, 1750, near the North Mountain, in the 
vicinity of Hagerstown, Maryland, was born Isaac Shelby, 
distinguished figure in the history of the Old Southwest — the 
second son and third child of Evan Shelby and his first wife, 
Letitia Cox. Endowed with the iron constitution of his father, 
young Shelby was reared in a martial atmosphere and early 
adapted himself to the strenuous life of the pioneer. Upon 
their removal to King's Meadows, near Bristol, the Shelbys 
herded and grazed cattle on an extensive scale along the Vir- 
ginia border. At Shelby's Station, the fort built by Evan 
Shelby, where hundreds were sometimes forted during the 
Revolution, the Shelbys kept a store ; and here Daniel Boone, 
according to records still preserved, purchased supplies in 
preparation for his ill-fated expedition in 1773. 

In 1774, as the result of showing himself to be a young 
man of promise, Isaac Shelby was appointed lieutenant in the 
militia by Colonel William Preston, the County Lieutenant of 
Fincastle County, Virginia. He was soon to see service ; for 
in October of that year occurred Dunmore's War, ending with 
the Battle of the Great Kanawha. The Holston men, who 



The Star of Empiri; 7 

were under the command of Col. William Christian, were the 
advance guard of civilization, the most daring settlers who 
had pushed farthest out into the western wilderness. Under 
Evan Shelby, one of the five captains in Col. Christian's com- 
mand, were his sons : Isaac, a lieutenant, and James, a pri- 
vate. Of the important part played by the Shelbys in this 
battle I have written at length elsewhere.* Suffice it to say 
that in this fierce struggle, the most stubborn and hotly con- 
tested fight ever made by the Indians in the Old Southwest 
against the English, it was the flanking movement of the de- 
tachment in which Isaac Shelby took a leading part that turned 
the tide and decided the victory for the whites. Isaac Shelby, 
the twenty- four year old officer, played an important and he- 
roic role in this decisive battle — the thrilling martial scene pre- 
liminary to the great drama of the Revolution. 

At the close of the campaign, a small palisaded rectangle, 
about eighty yards long, with block houses at two of its 
corners, was erected at Point Pleasant by order of Lord Dun- 
more. This stockade, entitled Fort Blair, was strongly garri- 
soned, and the chief command was given to that splendid 
border fighter, Captain William Russell. The young Isaac 
Shelby, in recognition of his valued services in the recent bat- 
tle, was made second in command. It was here, according to 
tradition, that the great Indian chief, Cornstalk, came to shake 
the hand of the young paleface brave, Isaac Shelby, who had 
led the strategic flank movement which stampeded his army. 



* Isaac Shelby: Revolutionary Patriot and Border Hero. In two parts. "North 
Carolina Booklet," January, 1917, and July, 1918. 



CHAPTER II 
The South westward Movement — The Hendersons 

In the middle years of the eighteenth century, attracted 
by the lure of rich lands in North Carolina, many families of 
Virginia gentry, principally from Hanover County, settled in 
the region ranging from Williamsborough on the east to Hills- 
borough on the west. These settlers were described by the 
quaint old diarist, Hugh McAden, as a people with "abund- 
ance of wealth and leisure for enjoyment." Some years later, 
Governor Josiah Martin, in speaking of the inhabitants of 
Granville and Bute counties, observed : "They have great pre- 
eminence, as well with respect to soil and cultivation, as to the 
manners and condition of the inhabitants, in which last respect 
the difference is so great that one would be led to think them 
people of another region." This society, to quote the words of 
Turner concerning the people of the Virginia Piedmont, was 
"a society naturally expansive, seeing its opportunity to deal 
in unoccupied lands along the frontier which continually 
moved toward the west, and in this era of the eighteenth cen- 
tury dominated by the democratic ideals of pioneers rather 
than by the aristocratic tendencies of slave-holding planters." 

When Samuel Henderson removed to North Carolina, the 
great frontier county of Granville embraced an immense ter- 
ritory which included the present county of Granville. At 
this time, the country was very sparsely settled ; and Samuel 
Henderson and his family, who were among the very earliest 
settlers, were the first to carry hogs and apple scions into that 
section. Dr. J. F. D. Smyth, an Englishman, who visited the 
neighborhood in 1774 and 1775, speaks of the "very fine set- 
tlement called Nutbush," and the "large body of excellent 
land." By 1749, Granville had about 3,000 inhabitants, in 
1763 some 4,000. The adjoining county of Orange showed an 
equally remarkable growth in population. In the South Caro- 
lina Gazette of March 8, 1768, may be read the following 
interesting comment : 

(8) 



The; Star of Empire 9 

"A letter from Williamsburgh, Virginia, dated October 18, 
1767, says: There is scarce a history, ancient or modern, which 
affords an account of such a rapid and sudden increase of in- 
habitants in a back frontier country, as that of North CaroHna. 

"To justify the truth of this observation, we need only to 
assure you, that 20 years ago there was not 20 taxable per- 
sons within the limits of the county of Orange, in which there 
are now 4,000 taxable." 

In his search for a settlement, the Moravian Bishop Span- 
genburg records that the "culture of Indian corn and raising 
of hogs" were the principal industries of the farmers of Gran- 
ville county. Probably the largest land owner in the county at 
this period was William Person, who called himself "Parson," 
sheriff of the county in 1754. 

Several years after his settlement on Nutbush Creek, 
Samuel Henderson was elevated to the office of high sheriff' 
of Granville county. According to the family records, Enfield 
court house was the seat of Samuel Henderson's office as sheriff. 
Undoubtedly, the most important and onerous of his duties 
as sheriff was the collection of taxes. The taxables consisted 
of "all the white males above 16 years of age, and all mula- 
toes, masters and slaves, male and female, above the age of 
12," and by this list the sheriff collected all the public or 
provincial poll. The sheriff was legally empowered to dis- 
train for all these taxes and was entitled to a fee of two shil- 
lings and eight pence currency for every distress. The sheriff 
had to be a freeholder of the county in order to qualify, held 
his office through the Governor's appointment, and had to 
"find surety for 1,000 pounds sterling that he should faithfully 
discharge the duties of that office and account for and pay all 
public and private moneys by him received as sheriff." 

Samuel Henderson was a man of strong and rugged frame, 
and always "executed his writs, subpoenas, and processes, 
afoot through the forest primeval, traversing a territory from 
Virginia on the north to Johnston county on the south, and 
from the mountains on the west to Northampton on the east" 



10 The Star of Empire 

(R. W. Winston's Address on Leonard Henderson). Most of 
the official duties of his office, during his absences, were per- 
formed by his deputy or by his son, Richard, the sub-sherifT. 
Samuel was "a man of social and benevolent disposition, 
his talents of the middle grade" — the words em- 
ployed by his son Pleasant, in his memoir. In the event, 
we need not be surprised that Richard Henderson, with 
so active, strong, and rugged a progenitor, should de- 
velop into one of the most remarkable pioneers, colonizers and 
law-givers of his time. Before his death in 1784, Samuel Hen- 
derson enjoyed the satisfaction of seeing both his son and 
his nephew upon the highest court of law — the first in the 
colony, the second in the state, of North Carolina. At a 
somewhat later day, two of his grandsons were to win the 
highest legal and judicial positions the State could offer, the 
one the recognized leader of the bar, the other Chief Justice 
of the Supreme Court of North Carolina. 

From his father, indubitably, Richard Henderson derived 
his unflagging energy and powerful physique. But it was 
from his mother, assuredly, that he derived those remark- 
able qualities of originality and constructive power which in 
after life won him such noteworthy distinction, and enabled 
him to play a leading role in the initial colonization that 
assured the ultimate acquisition of the West. Elizabeth Wil- 
liams, Richard Henderson's mother, born in Hanover county, 
Virginia, on November 14, 1714, was the daughter of John 
Williams, a wealthy emigrant from Wales. In the memoir 
written by her son Pleasant, she is described as a woman of 
exemplary life and unusual talents, possessing a "strong and 
comprehensive mind" — and ever "chastened by a due sense of 
futurity, and the advantages temporal as well as eternal of 
doing as she would wish to be done by" (underscored in the 
original memoir). She was the mother of twelve children, one 
of whom lived only a few days ; Mary, born in Hanover 
county, Virginia, January 10, 1734; Richard, born in Hanover 
county, April 20, 1733 ; Nathaniel, born in Hanover county, 
December 1, 1736; Elizabeth, born in Hanover county, Feb- 



The Star of Empire U 

ruary 19, 1738; Ann, born in Hanover county, March 13, 
1739 ; Susanna, born in Granville county, N. C, April 23, 1742 ; 
John, born in Granville county, October 24, 1744; Samuel, 
born in Granville county, February 6, 1746; William, born in 
Granville county, March 5, 1748; Thomas, born in Granville 
county, March 19, 1752 ; and Pleasant, born in Granville county. 
January 9, 1756. 

In consequence of the positive lack of either public 
schools in the county or of colleges in North Carolina, the elder 
children of the Henderson family, as recorded in Pleasant 
Henderson's memoir, were taught by a private tutor, especially 
engaged by their father to give them individual instruction. 
This was an unusual privilege in those days of hardy virtues, 
but limited educational facilities. 

In the prosecution of the affairs of his office, Samuel 
Henderson was obliged to spend a large part of his time away 
from home. In consequence of this circumstance, as recorded 
by his grandson, he gave over the general direction of the 
education of the children, and of Richard in especial, to his 
wife, who, while not a woman of high culture in the exacting 
sense in which we employ the phrase today, has been de- 
scribed by her grandson as "excellent, industrious, and intelli- 
gent." Like George Washington and Benjamin Franklin, 
Richard Henderson found the lack of a university education 
no bar to his success. From the evidence before us, it is clear 
that Richard Henderson enjoyed excellent educational ad- 
vantages in receiving the individual instruction of a private 
tutor, fortified as this educational discipline was by the direc- 
tive impress of the powerful mentality of his mother. On an- 
other score, we should not forget that his was that ideal pre- 
paratory school lauded by Luther Burbank, "the only place 
that is truly fit to bring up a boy or a plant — the country." 

It has been said of Richard Henderson that he possessed 
one of the most remarkable minds for the rapid acquisition and 
thorough assimilation of knowledge ever produced in the South. 
A talented, scholarly man, as described by that cautious and 
accurate historian, Lyman C. Draper, Richard Henderson was 



12 The Star of Empire; 

a profound student of law, government, and history ; and his 
brother, who studied law under his direction for considerably 
more than a year, enjoyed the benefits of his unusually fine 
library. It was, doubtless, not so much his researches in law 
and history, as his active participation in the practical duties 
of the afifairs of his father's office which gave him, as the his- 
torian Wheeler says, "that enlarged knowledge of men and 
things for which he became so eminently distinguished in af- 
ter life." During the term of his father's office, he served suc- 
cessively as constable, deputy, and acting sheriff, and often 
transacted for his father, in all its details, the business of 
the shrievalty. At the expiration of his father's term of 
office, Richard, "fired by a noble ambition," as Judge W. H. 
Battle puts it, devoted himself energetically to the study of 
the law, the natural and inevitable medium for the display of 
his mental qualities. 

After reading law for a twelve-month with his first cousin 
and senior, the capable attorney, John Williams, who lived hard 
by in the neighborhood, on his fine estate of "Montpelier," 
Richard Henderson made so bold as to apply for a license. It 
was the custom of that day for the prospective barrister to 
present himself for examination before the Chief Justice of 
the "General Court." The certificate of proficiency, issued by 
the Chief Justice to those who successfully underwent the 
ordeal of examination, was then presented to the Governor 
of the Colony, who, after satisfying himself that all require- 
ments had been properly met, issued the official Hcense. The 
following incident of Richard's experience in the eft'ort to 
obtain a license, after the brief period of his study (one year), 
as narrated by his brother. Pleasant, furnishes an admirable 
illustration of the mentality and self-confidence of Richard 
Henderson. It is, as his brother succinctly expressed it, "an 
evidence of the strength of his mind." 

On presenting himself for his examination, the applicant, 
because of his youth, was regarded with dubiety by the Chief 
Justice, Charles Berry. 



The; Star of Empire 13 

"How long have you read law, and what books have you 
studied?" he asked. 

"Twelve months," replied young Henderson, enumerating 
the books he had read. 

We may readily imagine the scornful smile of the Chief 
Justice, and the tone of his brusque reply : 

"It is quite unnecessary, young man, to proceed with this 
examination. No man in such a short space of time, and with 
only the books you have mentioned, can possibly have quali- 
fied himself to secure a license. My advice to you, sir, is to 
return home." 

This put young Henderson on his mettle — for although his 
experience in the law was limited, his sense of justice and fair 
play was already highly developed. In tones ringing with 
manly determination, he replied : 

"Sir, I am an applicant for an examination. It is your 
duty to examine me, and if I am found worthy, to grant 
me a certificate; if otherwise, to refuse it." 

Struck by the force of this spirited reply, yet none the 
less sharply nettled by having his duty thus concisely outlined 
for him by this country-bred youth, the Chief Justice pro- 
ceeded to give him a most rigid and searching examination. 
As little daunted by this running fire of questions as he had 
been by the discouraging advice of the Chief Justice, young 
Henderson survived the ordeal with brilliance. His examiner 
was so much impressed both by his coolness under fire and 
his real knowledge of the law, that on presenting him his 
certificate, he paid him many encomiums upon his industry, 
acquirements and talents. His license was forthwith granted 
by the Governor of the Colony. Beginning his legal career 
with so favorable an augury, Richard Henderson almost im- 
mediately began to win, as his brother expressed it, great 
success in the practice of his profession. 



CHAPTER III 
Henderson, Barrister and Judge 

This "very fine settlement called Nut Bush," as Smyth 
described it, with its "large body of excellent land," its rug- 
ged foothills, its solemn forests and fast flowing streams, 
brooded over by a spirit of reflective and majestic calm, was 
the natural milieu for the development of the figure known 
to history as Colonel Richard Henderson. Gathered about 
him were a host of friends and neighbors, congenial and 
high-souled folk — the Williamses, progenitors of a long line 
of famous men; the Bullocks, close relatives of the Hender- 
sons, whom they had followed to Granville county from New 
Hanover county, Virginia, shortly before the middle of the 
century; the Penns, the most famous of whom was the noted 
John Penn, one of the signers of the Declaration of Indepen- 
dence ; the Hargroves, Carringtons, Ridleys, and Baskervilles, 
"gentle folk possessed of broad acres, troops of slaves and 
dogs of all degrees." 

Another neighbor was the Irish Lord, George Keeling, 
who had been driven from his seat in Parliament and suf- 
fered the confiscation of his property on account of his intense 
Protestantism. He emigrated to Virginia, and established a 
fishery on the banks of the Rappahannock river, improvis- 
ing his own nets for catching herrings. Romantic glamour 
attaches to the authentic story that out of the proceeds of 
his earnings he sent to his sweetheart, Agnes Bullock, of Wales, 
a sum of money sufficient to pay her transportation across 
the Atlantic, where the protecting arms of her faithful be- 
trothed awaited her. 

On the death of Lord Keeling, John Williams, whose 
father, John Williams, was the brother of Richard Hender- 
son's mother, married the widow Keeling, nee Agnes Bul- 
lock, on November 12, 1759. Agnes Bullock, sister of Leonard 
Henley Bullock and daughter of John Bullock and Ann Hen- 
ley (daughter of Leonard Henley and Ann Hawkins), be- 

(14) 



The: Star of Empire 15 

longed to one of the most prominent and influential families of 
Granville county. 

The youngest daughter of Lord Keeling and A^gnes Bul- 
lock, Elizabeth, was married to Richard Henderson on De- 
cember 28, 1763. Another daughter, Nancy, was married to 
Thomas Satterwhite on October 15, 1772; while a third 
daughter, Frances, was married to Bromfield Ridley, a promi- 
nent lawyer of Granville county, on February 18, 1770. The 
only child'of John Williams and Agnes Bullock, the widow of 
Lord Keeling, was Agatha, who was married to Colonel 
Robert Burton, originally of Mecklenburg county, Virginia, 
and sometime member of the Continental Congress, on Oc- 
tober 12, 1775.* 

Richard Henderson found a worthy mate in the person of 
his wife, Elizabeth. "It may not be amiss to mention here," 
says the Hon. W. H. Battle, in his "Memoir of Leonard 
Henderson" (North Carolina University Magazine, Ix, 1859- 
60), as an evidence of the simplicity and frugality of the 
times, as well as of the prudence and industry of the matrons 
of his day that his mother (Elizabeth Keeling), though the 
wife of one of the highest officers of the province, taught 
her eldest sons, as well as her daughters, to card and spin. 
Why Leonard was not instructed in the same housewifely 
accomplishment we are not informed. The splendid pro- 
fessional career of one of his elder brothers, Archibald, shows 
that though it might not have advanced, it certainly would 
not have obstructed his upward course to fame and fortune." 

Richard Henderson's auspicious beginning at the law, in 
his notable tilt with Chief Justice Charles Berry, was pro- 
phetic of the eminent success he was successively to win as ad- 
vocate, King's Aittorney, Superior Court Judge, and ultimately 
lawmaker for the colony of Transylvania and the famous 
"Government of the Notables" on the Cumberland. His taste 
for the study of law, history, and literature found expression 
in the splendid library which he had collected ; and it was in 



* The original marriage bonds of all these marriages are still preserved in 
the court house at Oxford, N. C. 



16 The Star of Empire; 

this library and under his tutelage, in after years, that his 
younger brother, Pleasant, devoted almost two years to read- 
ing and the study of legal lore. Though only twenty-eight 
years old at the time of his marriage, Richard Henderson had 
already achieved striking success in the practice of his profes- 
sion. The earliest court record now to be found at Oxford, N. 
C, the trial docket of the County Court for the May term, 1763, 
shows that both Richard Henderson and his law-partner, John 
Williams, were engaged in an extensive practice. The court 
records at Salisbury, N. C, show that on September 22, 
1763, Richard Henderson was appointed King's Attorney for 
the district of Salisbury to serve at the October term of the 
Court of Pleas and Quarter Sessions. This same year we 
find him pitted against John Williams, his senior, in a number 
of cases on the Crown Docket in September, at Salisbury. 

The court records of the Reference Crown Docket, at the 
March term, 1764, for the District of Salisbury, show that a 
large proportion of the cases were entrusted to Richard Hen- 
derson for advocacy and trial. Here his colleagues and fellow 
advocates were the cultured and stately William Hooper, af- 
terwards famous as a signer of the Declaration of Indepen- 
dence ; John Dunn, persecuted Loyalist and subsequently good 
American ; John Kichen, the sagacious legal counsellor ; Ed- 
mund Fanning, the gentleman adventurer, the Associate Jus- 
tice; Alexander Martin, vigorous politician, afterwards Gov- 
ernor of North Carolina, who v/as frequently commissioned by 
the Crown to hold the District Court at Salisbury, notably in 
June, 1775, when Captain Jack, on his way to Philadelphia 
with an account of the Mecklenburg proceedings, passed 
through Salisbury and allowed the account to be read aloud 
by Col. William Kennon ; and many others of future promi- 
nence and distinction. Here and at Hillsboro, he was thrown 
into close association with the discreet and reliable Thomas 
Hart, and during the earliest days of his practice at Salisbury, 
he formed the acquaintance, subsequently ripening into sincere 
regard, of the hunter, Daniel Boone, and of his father, Squire 



The Star o^ Empire 17 

Boone, who served continuously as one of the "Worshipful 
Justices" at the County Court of Pleas and Quarter Sessions 
for many years dating from the first sittings of the court in 
1753. 

Richard Henderson was frequently called upon to serve as 
King's Attorney during the years from 1763 to 1768; and his 
genial nature and conspicuous ability brought him at once gen- 
eral popularity and high distinction. A contemporary, in speak- 
ing of Richard Henderson's practice and advocacy in the Su- 
perior Court, then the highest court of judicature in the 
province, pays him this distinguished tribute : 

"Even there, where oratory and eloquence is as brilliant and 
powerful as in Westminster Hall, he soon became distinguished 
and eminent and his superior genius shone forth with great 
splendor and universal applause." 

Following the dissatisfaction of the people with the con- 
stitution of the courts of law under Governor Dobbs during 
the years from 1760 to 1762, a "Supreme Court of Justice" 
was established in the districts of Edenton, Newbern, Salis- 
bury, Wilmington and Halifax, to be composed of the Chief 
Justice and an assistant judge. In 1767, a new and much more 
elaborate court system was adopted, to endure for a period of 
five years. The Province was divided into six judicial districts, 
Hillsboro being added to those above mentioned. In each was 
a court to be held by the Chief Justice and two associates, the 
latter appointed by the Governor and allowed 500 pounds a 
year, for payment of which a special tax on each wheel of a 
pleasure carriage, and on lawsuits was laid. "This system," 
says Dr. Kemp P. Battle in his "History of the Supreme Court 
of North Carolina," (103 N. C. Reports), "was an essential 
departure from the English system. Instead of the judges 
trying questions of fact only in the districts, leaving the ques- 
tion of law to be heard before all the judges sitting in bank at 
Newbern, all the members of the court went to the court house 
of each district and there heard both questions of fact and 
questions of law. The Nisi Prius Court and the Appellate 



18 The; Star of Empire 

Court were held in the same town by the same judges, and 
during the same term. A great defect was that one Judge, in 
the absence of the others, had all the powers of the court." 

At a meeting of the Governor's Council on March 1, 1768, 
at Wilmington, there being present Governor Tryon and 
James Hassell, John Rutherford, Lewis DeRossett, William 
Dry, Benjamin Heron, and Samuel Strudwick, members of 
the Council, the Governor announced his intention to appoint 
Richard Henderson, Esq., of Granville, an Associate Justice, 
he having formerly appointed Maurice Moore as the other 
Associate Justice, and Stephen Dewey as Judge Advocate for 
the District of Newbern, pending the meeting of the Council. 
The Council journal reads: "It is the unanimous opinion of 
this board that the said three gentlemen are properly qualified 
for the several offices." At the meeting of the next Superior 
Court, held at Salisbury, beginning March 5, 1768, Richard 
Henderson took his seat with Maurice Moore upon the bench, 
the entry in the court records of Rowan County reading : "This 
day Richard Henderson, Esq., produced His Majesty's commis- 
sion from His Excellency, the Governor, and under the great 
seal of the Province, thereby constituting and appointing him, 
the said Richard Henderson, one of His Majesty's Associate 
Justices of this Province who was qualified according to law 
by taking the oaths by law appointed for that purpose and re- 
peating and subscribing to the test." 

In the appointment of Henderson to this position, the 
Governor gave some voice to the western section of the Colony. 
At this time, be it recalled, the east was vastly the more fa- 
vored section. All the members of the Council were from the 
east, as were also the two other Superior Court Justices and 
the Attorney General. Moreover, five eastern counties sent 
five members each to the Assembly whereas other counties in 
the Province sent only two. Richard Henderson was signally 
honored, as a leading and representative man of his section, 
in being appointed as the sole high officer in the government 
from the entire western section of the colony. 

The high regard in which Richard Henderson was held 



The Star of Empire 19 

by the people of his own section and by the Governor himself, 
is best evinced by the letter of Governor Tryon to the Earl of 
Shelburne, from Brunswick, March 4, 1768: 

"Mr. Henderson is a gentleman of candor and ability, born 
in Virginia and about 33 years of age. He lives near Hills- 
borough in the back country, among a people whom I am per- 
suaded will be happy at having such a distinction paid to one 
who resides among them, and for whom they entertain an 
esteem." (Colonial Records, VH, 697.) 



CHAPTER IV 
Pre;liminaries of the Regulation 

The new Superior Court of North Carolina, Martin How- 
ard, Chief Justice, and Maurice Moore and Richard Hender- 
son, Associate Justices, constituted under the court law of 
1767, was soon called upon to render judgment in matters 
arising out of the Regulation agitation. The exceptional 
scarcity of currency, the disastrous consequences of which 
were escaped in the eastern part of the province through the 
convenient system of warehouse certificates, fell most heavily 
upon the poorer people of the frontier western counties. Ig- 
norance of the exact amount of the fees legally allowable un- 
der a loosely drawn fee bill was by no means confined to the 
uneducated people of the province. The Regulators living in 
the frontier counties, who were for the most part uncultured, 
violently resented, naturally enough, the devious and question- 
able devices employed by the sheriffs, registers, and clerks, to 
compel them to pay far more than was either just or right. 
An enormous proportion of the taxes, as was well known to 
the Regulators, never went into the public treasury at all, but 
was embezzled by the dishonest sheriffs. Staggering under 
the burdens of inadequately proportioned taxes, dishonest of- 
ficers, exorbitant fees, and an alarming scarcity of currency, 
the people were ripe for agitation and revolt. 

Edmund Fanning, around whom raged the fury of the 
Regulators, settled at Hillsborough in 1762, having been grad- 
uated five years before from Yale College. In March, 1763, 
he qualified as register of Orange County ; and from that date, 
by his contempt for the masses of the people and his efforts 
to exploit them for his own pecuniary gain, he aroused the 
undying hostility of the regulating element. 

Confident in the power conferred by large numbers, the 
Regulators on April 8, 1768, entered Hillsborough, took from 
the sheriff a horse which had been levied on for taxes, and 
departed with derisive shouts, after maltreating the sheriff 

(20) 



The; Star of Empire 21 

and others, and shooting up the house of Edmund Fanning. 
When Fanning, who was Colonel of the Orange County 
militia, and Lieutenant Colonel John Gray took steps to muster 
into service the local troops in order to suppress like displays 
of lawlessness and mob violence, the news so incensed the 
Regulators that they threatened to raise a force of 1500 men, 
march into Hillsborough, and burn down the town if their 
demands were not complied with. Warrants were issued for 
two of the leaders of the insurrection. Husband and Butler, 
who were immediately arrested by a posse led by Thomas 
Hart, former sheriff of the county, but subsequently released 
on bail. Governor Tryon proceeded to Hillsborough for the 
purpose of attempting to pacify the discontented faction; but 
so widespread was the disaffection that all his efforts proved 
unavailing. Thereupon he ordered out the militia, marched 
through Rowan and Mecklenburg counties, embodying troops 
on the way, and finally held a grand review at Salisbury on 
August 23, 1768. The governor addressed the troops in per- 
son, assuring them that a Superior Court to try those con- 
cerned in the recent disturbance had been ordered convened 
at Hillsborough and that an armed force was necessary for 
its protection. 

At the session of the Superior Court, held by Justices 
Howard and Henderson, beginning on September 23, the 
three insurgents on trial were found guilty of a riot and 
rescue, and sentenced as follows : William Butler to a fine of 
fifty pounds and six months' imprisonment; and Samuel De- 
vinney and John Philip Hartzo, each, to a fine of twenty-five 
pounds and three months imprisonment. About a year later, 
the governor, acting on the advice of his sovereign, pardoned 
by proclamation all those who had been found guilty on these 
charges. 

The real crux of the situation, which was to be settled at 
the same sitting of the court, was the trial of Edmund Fan- 
ning, register, and Francis Nash, clerk, of Orange County. 
Fanning pleaded a misconstruction of the fee bill. The court 
took an advisari on his motion in arrest of judgment and for 
a new trial ; and the matter was still pending and undecided 



22 The Star of Empire 

at the breaking up of the court in September, 1770. At the 
first meeting of the Regulators in Orange County in 1766, 
Francis Nash, who earnestly desired to adjust matters equit- 
ably, wrote them that 'he would refund to anyone aggrieved any 
fee charged by him which the Superior Court might hold ex- 
cessive; and again in 1768, he and Fanning made the same of- 
fer to the Regulators. Whilst Fanning escaped punishment on 
these suits, there is no reason to doubt that he had taken 
advantage of his office to construe the fee bill in such ways 
as to mulct the common people in unjust and exorbitant 
fees. The court had found him guilty of taking too high fees, 
but acquitted him of the "least intentional abuse." Their fail- 
ure to secure punishment for the most insidious of all their op- 
pressors, who always treated them with "insufiferable hateur," 
fortified in the Regulators the determination to call Fanning 
to personal account for the offense which, as they saw it, the 
jury had adjudged him guilty of, but failed to punish him for. 
In the diary of Waightstill Avery, a native of Norwich, Con- 
necticut, a graduate of Princeton, and now a young barrister 
residing in Salisbury, we read as follows : 

March 16 and 17, 1769. In company with the Judge 
(Richard Henderson), Colonel Fanning, and Mr. Hooper 
set out for Hillsborough. 

March 18, 19 and 20. Where we arrived on Monday the 
twentieth, having been waylaid by the Regulators who had 
formed an ambuscade to kill Colonel Fanning. 

In Rowan County, in this same year, the efforts of the 
Regulators to secure indictments against the court officials 
proved even less successful than the suits in Orange against 
Fanning. At their instance, William Hooper, recently ap- 
pointed Deputy Attorney General, drew up a bill against John 
Frohock for extortion. This was returned ignoramus. Three 
other indictments, involving the other two Frohocks, William 
and Thomas, proved equally unsuccessful. It seems clear that 
in these cases the Regulators, while having good cases against 
these corrupt county officials, were unsuccessful in securing 
either adequate evidence in support of their charges or ade- 
quate legal presentation of their cases. 



CHAPTER V 
Regulation and Insurrection 

During the summer of this year, the Regulators prepared 
an elaborate petition to the justices of the Superior Court, de- 
tailing the history of their agitation and the grounds for pro- 
test, and urgently praying for redress of their grievances. The 
tone in which the conclusion of the petition was couched was 
ominous and threatening, revealing the determination of the 
Regulators to take the law into their own hands, if the law 
were not administered, whether justly or unjustly, in their 
favor : — 

"Our only crime with which they can charge us is virtue in 
the very highest degree, namely, to risk our all to save our 
country from rapine and slavery in our detecting of practices 
which the law itself allows to be worse than robbery. If we 
[do not] obtain this (the substance of the petition) that we 
may have some security for our properties more than the bare 
number of our officers, we can see plainly that we shall not be 
able to live under such oppressions and to what extremities 
this must drive us you can as well judge as we can ourselves. 
As we are serious and in good earnest and the cause respects 
the whole body of people it would be a loss of time to enter 
into arguments on particular points, for though there are a 
few men who have the gift and art of reasoning, yet every 
man has a feeling and knows when he has justice done him 
as well as the most learned." 

Saturday, September 22, the court convened — at which 
time the court adjourned until Monday, after the defiant 
threat, euphemistically called petition, had been handed to 
Richard Henderson, the only justice present, by James Hunter. 
Monday morning, at 11 o'clock, Richard Henderson opened 
the court alone, none of the other justices being present at 
Hillsborough ; and Henry Pendleton, Esq., appeared as at- 
torney for the Crown. The court house, a simple, frame 
structure characteristic of the period, was located in the square 

(23) 



24 The Star of Empire 

in which the present court house now stands, with the prison 
and stocks in the rear. Nearby was the market house erected 
some time prior to 1768; the store of the firm of Johnston and 
Thackston occupied the southwest corner of the intersection 
of King and Churton streets, the court house the southeast 
corner, and the other stores the remaining corners. 

Leading men of the day, many of them famous at a later 
period, were present at this term of court : — ^John WilHams, of 
Granville, afterwards delegate to the Continental Congress, 
and Superior Court Judge after the Revolution, a genial, kind- 
hearted man ; Alexander Martin, Revolutionary patriot. Gov- 
ernor of North Carolina, and United States Senator, in turn; 
Francis Nash, former clerk of the court, and subsequently 
distinguished as a Brigadier General in the Revolution, being 
killed at the Battle of Germantown ; Thomas Hart, former 
sheriff of the county (1762-1763), the only sheriff, as the 
Regulators themselves stated, who settled his accounts; John 
Luttrell, clerk of the Crown, later an officer in the Revolution, 
killed in battle; John Cooke, clerk of the Superior Court; 
Tyree Harris, ex-sheriff, who had aroused the especial ire 
of the Regulators; Lieut. Col. John Gray and Maj. Thomas 
Lloyd, chairman of the County Court, both of whom had been 
active in raising the county militia to suppress the Regulators 
in 1768; Michael Holt, a gentleman-farmer and a man of re- 
pute ; Edmund Fanning, gentleman-adventurer, the chief ob- 
ject of Regulation vengeance; and others of like distinction 
and position. The most authentic account of the "hold-up" 
of the session of the Superior Court and of the indignities 
visited upon many respected and eminent citizens, is found 
in the letter of Judge Henderson to Governor Tryon, writ- 
ten from his home in Granville couny, of date September 
29, 1770. This letter, impartial in its essential points, is here 
reproduced in full : 

"Sir, 

"With the deepest concern for my country I have lately 
been witness to a scene which not only threatened the peace 
and well-being of this Province for the future, but was in 



The Star op Empire 25 

itself the most horrid and audacious insult to government, per- 
petrated with such circumstances of cruelty and madness as 
( I believe) scarcely has been equaled at any time. However 
flattering your Excellency's prospects may have been in respect 
to the people called Regulators, their late conduct too suffi- 
ciently evinces that a wise, mild and benevolent administra- 
tion comes very far short of bringing them to a sense of 
their duty. They are abandoned to every principle of virtue 
and desperately engaged not only in the most shocking bar- 
barities but a total subversion of the Constitution. 

"On Monday last being the second day of Hillsborough Su- 
perior Court, early in the morning the town was filled with a 
great number of these people shouting, hallooing and mak- 
ing a considerable tumult in the streets. At about 11 o'clock 
the court was opened, and immediately the house filled as close 
as one man could stand by another, some with clubs, others 
with whips and switches, few or none without some weapon. 
When the house had become so crowded that no more could 
well get in, one of them (whose name I think is called Fields) 
came forward and told me he had something to say before I 
proceeded to business. The accounts I had previously re- 
ceived together with the manner and appearance of these men 
and the abruptness of their address rendered my situation 
extremely uneasy. Upon my informing Fields that he might 
speak on, he proceeded to let me know that he spoke for the 
whole body of the people called Regulators. That they un- 
derstood that I would not try their causes, and their determi- 
nation was to have them tried, for they had come down to 
see justice done and justice they would have, and if I would 
proceed to try those causes it might prevent much mischief. 
They also charged the court with injustice at the preceding 
term and objected to the jurors appointed by the Inferior 
Court and said they would have them altered and others 
appointed in their room, with many other things too tedious 
to mention here. Thus I found myself under a necessity of 
attempting to soften and turn away the fury of these mad 
people, in the best manner in my power, and as such could 



26 The Star of Empire 

well be, pacify their rage and at the same time preserve the 
little remaining dignity of the court. The consequence of 
which was that after spending upwards of half an hour in 
this disagreeable situation the mob cried out, 'retire, retire, 
and let the court go on.' Upon which most of the Regulators 
went out and seemed to be in consultation in a party by 
themselves. 

"The little hopes of peace derived from this behavior were 
very transient, for in a few minutes Mr. Williams, an attorney 
of that court, was coming in and had advanced near the door 
when they fell on him in a most furious manner with clubs 
and sticks of enormous size and it was with great difficulty 
he saved his life by taking refuge in a neighboiing store house. 
Mr. Fanning was next the object of their fury, him they 
seized and took with a degree of violence not to be described 
from off the bench where he had retired for protection and as- 
sistance and with hideous shouts of barbarian cruelty dragged 
him by the heels out of doors, while others engaged in dealing 
out blows with such violence that I made no doubt his life 
would instantly become a sacrifice to their rage and madness. 
However, Mr. Fanning, by a manly exertion miraculously 
broke hold and fortunately jumped into a door that saved him 
from immediate dissolution. During the uproar several of 
them told me with oaths of great bitterness that my turn 
should be next. I will not deny that in this frightful affair 
my thoughts were much engaged on my own protection, 
but it was not long before James Hunter and some other of 
their chieftains came and told me not to be uneasy for that 
no man should hurt me on proviso I would sit and hold court 
to the end of the term. 

"I took advantage of this proposal and made no scruple at 
promising what was not in my intention to perform for the 
terms they would allow me to hold court on were, that no 
lawyer, the King's Attorney, excepted, should be admitted into 
court, and that they should stay and see justice impartially done. 

"It would be impertinent to trouble your Excellency with 
many circumstances that occurred in this barbarous riot. 



The Star o? Empire 27 

Messrs. Thomas Hart, Alexander Martin, Michael Holt, John 
Luttrell (clerk of the Crown) and many others were severely 
whipped. Col. Gray, Major Lloyd, Mr. Francis Nash, John 
Cooke, Tyree Harris and sundry other persons timorously 
made their escape or would have shared the same fate. In 
about four or five hours their rage seemed to subside a little 
and they permitted me to adjourn court and conducted me 
with great parade to my lodgings. Colonel Fanning, whom 
they had made a prisoner of, was in the evening permitted to 
return to his own house on his word of honour to surrender 
himself next day. At about 10 o'clock that evening, I took 
an opportunity of making my escape by the back way, and left 
poor Colonel Fanning and the little borough in a wretched 
situation. 

"Thus far may it please your Excellency with respect to 
what came within my own knowledge. Since my departure 
many different and authentic accounts say that the mob, not 
contented with the cruel abuse they had already given Mr. 
Fanning in which one of his eyes was almost beaten out, did 
the next day actually determine to put him immediately to 
death, but some of them a little more human than the rest, in- 
terfered and saved his life. They turned him out in the street 
and spared his life on no other conditions than that of taking 
the road and continuing to run until he should get out of their 
sight. They soon after, to consummate their wicked designs, 
broke and entered his mansion house, destroyed every article 
of furniture, and with axes and other instruments laid the 
fabric level with its foundation, broke and entered his cellar 
and destroyed the contents, his papers were carried into the 
streets by armfulls and destroyed, his wearing apparel shared 
the same fate; I much fear his office will be their next object. 
Have not yet heard where Colonel Fanning has taken shelter, 
the last advice was that he was a mile or two from town on 
horseback, but the person by whom this came says that the 
insurgents have scouting parties constantly traversing the sev- 
eral roads and woods about town and should he unfortunately 
fall into their hands the consequences perhaps would be fatal. 



28 The Star of Empire 

The merchants and inhabitants were chiefly run out into the 
country and expect their stores and houses without distinction 
will be pillaged and laid waste. 

"The number of insurgents that appeared when the riot 
first began was, I think, about 150, though they constantly 
increased for two days and kept a number with firearms at 
about a mile distant from town ready to fall on whenever they 
were called for. This amount is contradicted by some and 
believed by others ; certain it is that a large number of men 
constantly lay near the town, whether they had arms or not 
is not yet sufficiently determined. 

"As the burden of conducting Hillsborough Superior Court 
fell on my shoulders alone, the task was extremely hard and 
critical. I made every effort in my power consistent with 
my office and the duty the public is entitled to claim to preserve 
peace and good order, but as all attempts of that kind were inef- 
fectual, thought it more advisable to break up court than sit 
and be made a mock judge for the sport and entertainment 
of those abandoned wretches. 

"This express has been delayed two days in expectation of 
obtaining from Mr. Fanning a more particular account of the 
damage done him as well as the rest of the inhabitants of that 
desolate borough, but as the persons whom I sent for that 
purpose are not yet returned, think it my duty to forward this 
with the utmost expedition. Should my conduct through the 
transactions merit your approbation it will greatly add to the 
felicity of 
"Sir, 

"Your Excellency's most obedient and obliged humble 
servant, 

Richard Henderson. 

"To his Excellency Governor Tryon. 

"P. S. My express has this instant arrived from Hills- 
borough with the following accounts : Colonel Fanning is alive 
and well as could be expected. The insurgents left the town on 
Wednesday night having done very little mischief after spoil- 



The Star of Empire 29 

ing Mr. Fanning's house except breaking the windows of 
most of the houses in town, among which Mr. Edwards' did 
not escape. The merchants and others are taking possession of 
their shattered tenements. Mr. Fanning's house is not quite 
down, a few timbers support the lower story, but they are cut 
off at the sills and a small breeze of wind will throw down the 
little that remains. Everything else that we heard of Mr. 
Fanning is true with this addition that he lost upwards of 
200 pounds in cash. 

"Inclosed is a petition presented me on Saturday by James 
Hunter, that being the first day of the court, the answer was 
delayed till Monday. Your Excellency may best judge if 
that paper may not be of service at a future day. There are 
many subscribers who are all without dispute Regulators. 

I am as before, 

"R. H." 

In the account published in the New York Gazette, being 
correspondence from Newbern, dated October 5, 1770, some 
additional facts not contained in Henderson's letter may be 
gleaned. On ascending the bench, the Regulators ordered 
Judge Henderson "to pursue business," but in the manner in 
which they should prescribe, which was that no lawyers should 
enter the court house, no juries but what they should pack, and 
order new trials in cases where some of them had been cast 
for their malpractices. Furthermore, they seized Mr. William 
Hooper, Assistant Attorney General, and afterwards one of 
North Carolina's notable men ; "dragged and paraded him 
through the streets, and treated him with every mark of con- 
tempt and insult." But for the accident of being at the home 
of Mr. William Johnston, some miles from Hillsborough, 
doubtless Mr. James Iredell, at that time attorney and subse- 
quently Justice of the United States Supreme Court, would 
have suffered shameful indignities at the hands of the Regu- 
lators (McRee's "Life of James Iredell," ii, 379). During 
the riot of the second day, after destroying Fanning's house 
and contents, "they went to a large, handsome church bell, 



30 The Star of Empire 

that Colonel Fanning, at the expense of 60 or 70 pounds had 
made a present to the Church of Hillsborough and split it to 
pieces and were at the point of pulling down the church ; but 
their leaders, thinking it would betray their religious principles, 
restrained them." They destroyed the church bell under a 
ludicrous misapprehension that it was a spice mortar ! (Caruth- 
er's Life of Caldwell, note, p. 133.) 

Fanning they hunted out of town with dogs at his heels, 
stoning him as he fled ; and to show their opinion of lawyers, 
"they took from his chains a negro that had been executed 
some time, and placed him at the lawyer's bar." At the court 
house, they held court, one of the Regulators sitting on the 
bench as judge, another acting as sheriff, and still another, 
one Yorke, as clerk. According to tradition, the Regulators 
before hunting Fanning out of town, made him plead law at 
the mock court which they had set up. (Caruthers' Life of 
Caldwell, p. 132.) The court records still preserved at Hills- 
borough bear the entries made by the Regulators, in disposing 
of the cases then on the docket, reeking with billingsgate and 
profanity, and invariably deciding all cases in favor of those 
of "regulating principles." Some of the entries well take the 
measure of the caliber and temper of the Regulators. "Damned 
Rogues," "Fanning pays cost but loses nothing," "Hogan pays 
and be damned," "Negroes not worth a damn. Cost exceeds 
the whole," and in a case for "slander," the entry: "Nonsense, 
let them agree for Ferrell has gone hellward," and again, 
"Judgment by default, the money must come to officers." 

Upon the book which bears these entries, with the title 
"Trial Causes to Hillsborough Superior Court, September 
Term, 1770," may still be read the significant entry: 

"Several persons styling themselves Regulators assembled 
together in the court yard, under the conduct of Herman Hus- 
bands, James Hunter, Rednap Howell, William Butler, Samuel 
Deviney and many others, insulted some of the gentlemen of 
the bar, and in a violent manner went into the court house 
and forcibly carried out some of the attorneys and cruelly 
beat them. They then insisted that the judge should proceed 



The: Star op Empirjb 31 

to trial of their leaders, who had been indicted at a former 
court, and that the jury should be taken from out their party. 

"Therefore, the judge, finding it impossible to proceed 
with honor to himself and justice to his country, adjourned 
court until tomorrow morning at 10 o'clock, and took advan- 
tage of the night and made his escape, and the court ad- 
journed until court in course. 

"Minute Docket, September 22, 1770." 

Richard Henderson was recognized everywhere throughout 
the colony as a fair and just judge. During those stirring 
times, the Superior Court, the highest court in the Colony, 
stood as a bulwark between the mob and the objects of its 
animosity. The proposals, with which the Regulators wished 
Henderson to comply, were a scandalous travesty of justice, 
a mockery of the first principles of equity. No charge of in- 
justice in the administration of his office was ever made against 
Henderson. It is a noteworthy circumstance that, although 
the Regulators were rebelling against legal tyrannies and the 
alleged injustices of county officials, they visited no violence 
upon Judge Henderson and subjected him to no indignities, 
whilst soundly thrashing, or attempting to thrash, a number 
of men afterwards of great eminence and distinction in North 
Carolina. There were some threats by the more unruly of 
the mob ; but Judge Henderson was protected from personal 
violence and indignity — the very last course to be pursued by 
the Regulators had he been identified in their minds with in- 
justice, oppression or condonement of extortion. It is less a 
credit to the lawless mob of the Regulators than a testimonial 
of the people's confidence in Henderson as a just judge that 
they abstained from doing him bodily violence. In so far, at 
least, the mob refrained from degrading those principles of 
society which, by virtue of his position and office, were vested 
in his person. Henderson refused to yield to the dictates of 
lawless and incensed anarchists, abandoned the hopeless effort 
to hold the court and returned to his home. 

The community of Hillsborough was terrorized, the coun- 
tryside in a state of violent and uncurbed insurrection. With- 



32 The Star of Empire; 

out the support of an armed force, the court was powerless ; 
and mihtary protection was not to be expected of a people 
utterly terrorized by a mob which shot up Hillsborough with 
all the dare-devil recklessness and wild bravado of a band of 
Western cowboys. This mob was furthermore doubly dan- 
gerous in that it was animated with a spirit of vengefulness 
against chosen objects of their wrath, many of whom were 
wholly innocent of offense. Henderson adjourned court sine 
die' it was "Hobson's choice." Like another North Carolina 
jurist who had learned the law under Richard Henderson's 
own son, in a civil crisis a century later he realized that "the 
power of the judiciary was exhausted." 

The failure of the legal machinery of the Colony to control 
the Regulating mob had already been recognized by Judge 
Maurice Moore in his letter of March 13, 1770, to the Gov- 
ernor, from Salisbury, in which he points out that the designs 
of the insurgents went further than to promote inquiry into the 
conduct of civil officers. According to his information, "there 
is no such thing as collecting the public tax, or levying a pri- 
vate debt among them (the Regulators)," Ominous and pro- 
phetic are his words: "This is an evil, sir (tho' cognizable in 
the courts of law) no civil process can remedy." (Col. Rec, 
Vni, 192.) 

At a meeting of the Governor's Council, on October 18, 
was read the opinion of the Attorney General upon the of- 
fenses contained in Judge Henderson's report of the Hills- 
borough riot. The Attorney General's opinion contained these 
words : "That the menaces thrown out against, and the in- 
sult offered Mr. Justice Henderson when in the execution of 
his office, and the Insurgents preventing him from holding out 
the term there, will be construed in law only a misdemeanor, 
though of the highest nature." The pulling down of Fan- 
ning's house and the assaults upon numerous citizens were 
construed as a riot; and the words of the Regulators, in 
drinking "damnation to King George and success to the 
Pretender," were construed as, in all probability, amounting 



The; Star of Empire; 33 

to high treason — had they been supported by more ample and 
conclusive evidence. In his report to Lord Hillsborough, on 
October 7, Governor Tryon- wrote of the Hillsborough riot: 
"After they had offered many insults to the dignity and pro- 
ceeding of the court, they committed such outrages in the 
town that Mr. H.enderson, the Associate Judge, was forced 
to put an end to the court by making his escape in the middle 
of the night." (Col. Rec, VH, 248.) 

The sentiment which animated the mob at Hillsborough 
was not one of animosity against Judge Henderson, personally. 
The Regulators had been ingratiated by Chief Justice How- 
ard's leniency and considerate attitude. The only record of 
objection to Judge Henderson was voiced by an agitator and 
Regulator, one Thomas Hamilton, who was heard by Waight- 
still Avery on March 6, to harangue a group of excited Regu- 
lators near Salisbury, in the following words : "What business 
has Maurice Moore to be judge, he was not appointed by the 
King, he nor Henderson neither. They'll neither of them 
hold court." (Col. Rec, VHI, 518-520.) The grievance was 
not expressed out of pure prejudice or personal animosity ; the 
protest was directed against the system of judicial appoint- 
ment, the selection of the associate justices by the Governor, 
and not by the King. It is true, however, that Maurice Moore 
was actually held in especial detestation by the Regulators. 
Upon one occasion, he was roundly denounced by the Regu- 
lators as "rascal, rogue, villain, scoundrel" and other, un- 
printable terms and even threatened with flogging and still 
worse, with death, if he attempted to hold court at Salisbury. 
(Col. Rec, VIII, 520.) 

The demands made of Judge Henderson by the treasonable 
mob at Hillsborough, had he attempted to accede to them, which 
is inconceivable, would have resulted in a scandalous travesty 
of justice. It was only after Henderson failed to comply 
with their revolutionary proposals, subversive of all law and 
social order, and had escaped from their clutches, that the 
Regulators formed the determination to vent upon him their 
baffled rage and incendiary revenge. On November 18, Gov- 



34 The; Star of Empire; 

ernor Tryon reported to a meeting of his council at Newbern 
that Judge Henderson had just acquainted him with most 
starthng information. An express from Granville county had 
informed Judge Henderson on the evening of Sunday, Novem- 
ber 18, that on Monday, Nfovember 12, his barn and stables 
had been set fire to and consumed together with several horses 
and a quantity of corn, and that on the night of the Wednesday 
following his dwelling was set fire to and consumed. A 
proclamation was accordingly issued by the Governor, requir- 
ing all civil officers to assist in apprehending the incendiaries, 
and offering a reward of 100 pounds to anyone who should 
apprehend the criminal or criminals. Something little short 
of financial ruin, assuredly, was the price which Richard 
Henderson paid for his devotion to due process of law. 

In February, 1771, a court having been ordered to sit at 
Hillsborough, the Chief Justice and his two associates sub- 
mitted a remonstrance to the Governor, which eloquently tes- 
tifies to the social revolution then in progress in North 
Carolina : 

"Sir, 

"Your Excellency having signified to us your opinion that 
it is expedient that the Chief Justice, Associate Justices and 
Attorney General should attend the ensuing court at Hills- 
borough, we do acquaint Your Excellency that we have con- 
ferred together upon the subject, and considering the violences 
committed there at the last court, and being well informed that 
the disturbances and distractions in the district are rather in- 
creasing than declining, we submit it to Your Excellency as 
our opinion that we cannot attend that court with any hopes 
of transacting the business of it ; or, indeed with any prospect 
of personal safety to ourselves. 

, "Martin Howard, C. J. 

"M. Moore, 
"R. Hende;rson, 
"March 18, 1771, Newbern." 



The; Star of Empire 35 

In their letter to Governor Tryon from Salisbury, of 
March 18, 1771, John Frohock and Alexander Martin re- 
ported that, at a conference with some 400 or 500 Regulators 
nearby on the Yadkin, the Regulators expressed concern when 
they learned that the judges "did not think it prudent to hold 
court in Salisbury under the direction of whips and clubs." 
They said "there would have been no danger for the Chief 
Justice to have held a court, but as to the associates they 
were silent" — showing their continued animosity against the 
hated Moore, and against Henderson upon whom they had 
already wreaked their incendiary vengeance. (Col. Rec, VIII, 
534.) In the court records, preserved at Hillsborough, we 
may today read the significant entry : 

"Hillsborough, March Term, 1771. 
"The persons who style themselves Regulators and under 
the conduct of Herman Husbands, James Hunter, Rednap 
Howell, William Butler, Samuel Devinney and others, broke 
up the court at September term last, still continuing their 
riotous meetings and severely threatening the judges, lawyers, 
and other officers of the court, prevented any of the judges and 
lawyers attending. 

"Therefore the court continues adjourned till September 
term next 1771." 

Admirably expressive of the state of the Colony at this 
time, and of the pressing need for decisive and strenuous ac- 
tion, is the following vivid picture of the work of the Regu- 
lators : 

"Their demands and their violence increased at every 
meeting. Their success produced no reformation. They broke 
and trampled under foot all the bonds of civilized society, and 
gave reins to every disordered passion ; for vice itself, by re- 
peated acts of violence had changed its name and color. They 
prevented the Superior Court from sitting in Hillsborough, 
insulted the judges, and maltreated the inhabitants. Not satis- 
fied with abusing Judge Henderson at court, they burnt his 



36 The; Star of Empire 

stables and corn on the 12th of November, and they burnt 
his dwelHng house on the 14th. It was no longer a question 
whether clerks, registers, or lawyers should be permitted more 
than legal fees, and sheriffs be compelled to account for all 
the taxes they had collected. It was now to determine whether 
civil government should prevail, or every man's property be 
exposed, without redress, to the avarice or resentment of a 
lawless mob." (Williamson's History of North Carolina.) 

According to the statement of John Ashe in the Assembly 
of 1769, Thomas Person, formerly sheriff of Granville (1762) 
and in 1769 member for that county, had frequently been 
charged with perjury. (Col. Rec, VIII, 118.) On his trial 
for perjury and extorting illegal fees, at the December (1770) 
session of the Assembly, Richard Henderson prosecuting, 
Thomas Person was exonerated of the charges preferred, John 
Campbell acting as chairman of the investigating committee ; 
and the report of the findings of the committee was ordered to 
be "printed in The Public Gazette." ( Col. Rec, VIII, 448, 449, 
461.) Through clever manipulation, at an auspicuously 
chosen moment in a "very thin house" composed for the nonce 
almost entirely of adherents of Person who were of avowedly 
Regulating principles, Henderson, the prosecutor, was or- 
dered by the Assembly to pay the heavy costs of the suit. It 
was further ordered that if Henderson failed to pay, he was 
to receive the highest censure the House could inflict upon 
him. (Col. Rec, VIII, 467-8.) The costs of the suit were 
117 pounds. 

Such was the malice of the Regulating element — that 
element which, incited by the violent expressions of Person, 
himself a notorious Regulator, and others of like temper, 
visited such cowardly incendiary vengeance upon Henderson. 
The real attitude of the Assembly of 1770 towards Person, 
despite the Campbell report, expressive of their thorough-going 
distrust of him as agitator and Regulator, is expressed in their 
action, whether intended or actually taken, in expelling him 
from that body. We read in the anonymous letter, attributed 
to Rednap Howell, a Regulation leader : "When the house 



The Star of Empire 37 

met their first step was to expel Husband and Parsons (Person) 
from their seats; Husband they sent to jail; Parsons, home." 
(Col. Rec, Vni, et seq.) The records unequivocally show 
that Husband was expelled and incarcerated (Ibid., VHI, 268, 
269; 330, 331) ; but as to Person they are silent. 

In writing to Earl Hillsborough on March 11, 1771, Gov- 
ernor Tryon expresses great satisfaction over the session just 
then concluded, stating that he has been "honorably seconded 
by the Legislature." The exceptional character of the action 
of Person's friends in securing the malicious placing of the cost 
of the suit against Person upon Richard Henderson, furnishes 
the one striking exception, and becomes the occasion for a 
notable tribute to Judge Henderson : 

"There was, however, one step taken which gave me much 
concern. It was the resolution passed respecting Mr. Hen- 
derson, one of the associate judges. This was done by sur- 
prise in a very thin House composed of the friends of a mem- 
ber of the House who stood charged by Mr. Henderson with 
having perjured himself, I am sensible Mr. Henderson will 
liave a more favorable verdict at the next session, a majority 
of the members who happened to be absent when this unfair 
advantage was taken, declaring afterward their disapprobation 
thereof. 

"Mr. Henderson, my Lord, is a man of probity and a firm 
friend of Government as well from principle as from the duty 
of his office, and who from his spirited endeavors to preserve 
the last Hillsborough Court against the insults of the In- 
surgents, by the malice of his enemies and those of Govern- 
ment, has had his house, stables, four horses and many other 
effects burned last Winter, sufferings which pleaded for more 
humanity than he received from representatives of his country- 
men." (Col. Rec, VIII, 525.) 

As anticipated by the Governor, the malice of Person's ad- 
herents was balked at the very next session of the Assembly. 
Oti December 19, 1771, it was on motion 

"Resolved, That the resolve of the last session of the 
Assembly held at Newbern on the fifth day of December, 



38 The Star op Empire 

one thousand seven hundred and seventy, directing Richard 
Henderson, esquire, to pay the expenses of several witnesses 
who were called to the bar of this House to give evidence 
against Thomas Person, one of the members thereof, on sev- 
eral charges of perjury and extortion, be rescinded and ex- 
punged from the journals of the House. Rd. Caswell, Speaker. 
J. Green, junr. Clk." (Mss. Collections, N. C. Historical Com- 
missions. Cf. also. Col. Rec, IX, 196.) 

Pursuant to this resolution of the Assembly, one of the 
broader minded men of the day, in the interest of justice and 
fair play, forwarded a copy of the resolution to the editor of 
the Newbern Gazette, Mr. James Davis, with a request to 
publish the same — which request was doubtless carried out. 
Inclosed with a copy of the resolution was the following let- 
ter, fully indicative of the saner sentiment of that day : 

"Mr. Davis: 

"At the last session of Assembly held at Newbern, it was 
resolved, that the Honorable Richard Henderson, esquire, one 
of the associate judges of this Province, should pay the ex- 
penses of certain witnesses, called to the bar of the House to 
give evidence against Thomas Person, upon charges of perjury 
and extortion. 

"The publication of that resolve, in the Newbern paper, 
had a designed and necessary tendency to prejudice the repu- 
tation of Mr. Henderson, in the opinion of those who con- 
cluded the House of Assembly would inflict their censures 
upon such only as merited them. From a (line missing * * *) 
upon their journals by an undue influence, exerted to obtain 
it, and at the time of passing it, many members were absent, 
who held that proceeding in abhorrence, and would have 
solemnly protested against it, if they had been present. The 
Assembly at their present session in a full House, entered 
into a resolve a true copy of which I (send?) you as a mem- 
ber of the community, disposed to do equal justice, and make 
the vindication of Mr. Henderson's character as public as 
was the attempt to asperse it, I beg you will give this last 



The Star of Empiri; 39 

resolve a place in your paper, and you will oblige many of 
your readers. 

"December 21st, 1771." 

(Unpublished Henderson mss.) It is reasonable to suppose 
that this letter as well as the resolve was published by Mr. 
Davis in the Newbern Gazette. 

Richard Henderson was vindicated in the most ample and 
satisfactory manner. The original resolve, "railroaded 
through" the Assembly by Person's partisan supporters, was 
not only rescinded, but ordered "expunged from the journals 
of the House." The resolve exonerating Henderson was 
published in the Newbern Gazette. The Assembly on De- 
cember 14, 1773, ordered the costs of the suit against Person 
to be paid out of the public treasury. Whatever may be said 
of his later distinguished services, certain it is that Person was 
so active and so notorious in his leadership of the Regulators 
as to be included by Governor Tryon in the list of those ex- 
cepted from the benefit of pardon. Person was captured by 
the forces of Governor Tryon, carried as a prisoner to Hills- 
borough, and there confined with the Regulators who were 
convicted and sentenced to death. Person succeeded in escap- 
ing trial and further punishment — according to tradition, 
through the personal friendship between him and Edmund 
Fanning, who "had the ear of the Governor." (Col. Rec, VHI, 
xxvii-xxviii.) 



CHAPTER VI 

Alamance 

Meanwhile the Governor, the Council and the Assembly 
had all come to one conclusion as to the policy it was im- 
perative to pursue. The disturbances in the Colony must be 
suppressed and the insurgents put down with military force. 
The report of the committee, submitted on September 10, 1770, 
and duly adopted, contained the following significant clause : 

"The late daring and insolent attack made on the Superior 
Court at Hillsborough, by the people who call themselves 
Regulators, we hold in the utmost detestation and abhorrence. 
The deliberate and preconceived malice with which it was con- 
trived, and the brutal fury with which it was executed, equally 
bespeak them unawed by the laws of their country, insensible 
to every moral duty, and wickedly disaffected to government 
itself. The dissolute principles and licentious spirit by which 
these people are actuated and stand united, render them too 
formidable for the ordinary process of law. Sensible of this, 
sir, we owe it to our sovereign, our constituents, and our- 
selves, to adopt measures at once spirited and decisive." (Col. 
Rec, Vni, 312.) 

Four days later Samuel Johnston brought in his drastic 
"Riot Act," which was immediately tabled by a House, the 
majority of whom were of Regulation principles. The House 
then appointed a committee to prepare a bill regulating of- 
ficers' fees. While the House was bending all its energies 
toward passing reformatory laws, the Regulators themselves 
precipitated the originally contemplated drastic action. On 
December 31, news reached the House that a large body of 
Regulators were assembled with wagons and provisions at 
Cross Creek (Fayetteville) preparatory to marching on New- 
bern. Within a week Johnston's "Riot Act" was taken from 
the table and passed. Various bills, embodying reforms sought 
by the Regulators, were also passed by the Assembly; but 
the imprisonment of Husband, against whom "no bill" was 

(40) 



The Star of Empire 41 

actually found by the special term of the Court of Oyer and 
Terminer at Newbern on February 2, 1771, the Chief Justice 
presiding, aroused the Regulators to a renewed outbreak of 
insurrectionism. They had even gone so far as to assemble 
in readiness to march upon Newbern to rescue Husband, when 
the news of his release reached them ; whereupon they quietly 
dispersed. But the terror caused by their embodiment threw 
the entire province into a panic of dread and the government 
hurriedly called out the regiments of Dobbs, Johnston, and 
Wake counties. Another term of court, called by the Governor, 
met on March 11 at Newbern, at which all the justices were 
present, and every one of the 62 indictments against the 
Regulators was returned "a true bill." As all these defen- 
dants were adjudged outlaws under the riot law if they did 
not appear for trial in 60 days, another court was called for 
two months later, to which all these bills were made returnable. 

On March 19, the Governor called for 2,500 volunteers 
from the various counties of the Colony. Considerable ob- 
stacles were encountered in embodying troops to serve, some 
counties refusing to furnish their quota, others complying with 
marked reluctance. The cloud of civil war loomed dread- 
ful upon the horizon. After numerous vicissitudes of fortune, 
Tryon with his forces reached the banks of the Alamance on 
May 14. Two days later he formed his army, some 1,000 
men and officers, in line, and marched to meet the enemy, 
assembled to the number of some 2,000, about five m^iles further 
on. There is no incident in North Carolina history which so 
fitfully glows with pedestrian heroism and pathetic inefficiency. 
In response to the representations of Doctor Caldwell, who 
interviewed the Governor, and a petition from the Regulators, 
presumably transmitted by Caldwell, Tryon refused to make 
any concession, standing firm upon the condition that the 
people should submit to government, and disperse at a desig- 
nated hour. 

No true realization of the impending tragic conflict seems 
to have been felt by the Regulators. Engaged in wrestling 
matches among themselves, as if upon a holiday, they were 



42 The Star of Empire 

suddenly aroused to a sense of danger when an old soldier 
in their midst warned them to look out for a volley. It was 
what they might have expected, for when Tryon refused to 
make any concession after being petitioned a second time, 
for a redress of grievances, they told the messenger to go 
back and tell Billy Tryon they defied him, and that a fight 
was all they wanted. Finally Tryon sent them his ultimatum : 
that unless they dispersed at once, they would be fired upon. 
"Fire! and be damned!" was the defiant reply. Upon re- 
ceiving this message, the Governor ordered his troops to fire. 
At first the troops failed to comply ; whereupon Tryon, who 
was riding upon a white charger, rose in his stirrups and cried : 
"Fire! Fire on them or on me!" A volley rang out, and the 
tragic conflict was on. 

From behind trees, fences and rocks the Regulators at 
first poured in a withering fire upon Tryon's forces. The 
artillery of the Governor's troops did much execution among 
the Regulators ; but these, led by Captain Montgomery, made 
a desperate attack upon the guns, which they finally captured, 
after routing the gunners. The Regulators soon found them- 
selves unable to work the guns, and lacking support from 
their main body, gave way before the attack of the Governor's 
forces and abandoned the guns. After two hours of fighting, 
the Regulators abandoned the field, having lost nine men killed 
and a great many wounded. Of the 15 men who were cap- 
tured, one, James Few, was summarily executed upon the field 
of battle, he having been under ban for outlawry. Given the 
alternative of taking the oath or being hanged, Few firmly re- 
fused to take the oath, though twice urged to do so by the 
Governor, who wished to spare his life. It is clear that his 
execution, though needlessly summary, was inevitable, sooner 
or later. It was ordered at the time to quiet the dissatisfac- 
tion among Tryon's soldiers, who threatened to go no further 
unless some of the insurgents were summarily dealt with. 

On the day following the battle, the Governor pardoned 
by proclamation all those who would submit themselves to 
government and take the oath of allegiance, specific exception 



The; Star of Empire; 43 

being made of those who had already been captured and thos^ 
who had recently been outlawed. Tryon received hearty ap- 
probation for his conduct from the British Government, which 
also directed him to tender publicly the King's thanks to the 
troops for their loyal conduct during the campaign. 

Joined on its march westward on June 4 by General Wad- 
dell's column, which had not been present at the battle, the 
united forces finally entered Hillsborough on June 14. Several 
courts martial for the trial of prisoners had been held while 
the troops were on the march, and also at Hillsborough, as late 
as June 18. From June 14 to June 18, an especial Court of 
05^er and Terminer, consisting of the Chief Justice and his 
two associates, Moore and Henderson, sat in trial of the 
prisoners, 12 of whom were convicted of treason and two ac- 
quitted. Six were executed on June 19, the remaining six 
being reprieved by the Governor at the solicititation of the 
officers of the army. (Col. Rec, VHI, 650.) During Tryon's 
absence, the six reprieved prisoners, "by some strange irregu- 
larity," were set at liberty, and were never afterwards brought 
to justice. It is important to state in vindication of the repu- 
tation of the court which tried these prisoners, that the 
judges were just in their decision, and lenient in their recom- 
mendation. The Governor desired to make a bloody example 
of the captured Regulators, and doubtless would gladly have 
seen all 14 executed. It was only at the solicitation of the 
officers of the Army that six of the 12 Regulators condemned 
to death escaped with their lives. Tryon sought to intimidate 
the court itself, and to force it to do his bidding, rather than 
to administer justice. Nothing more clearly demonstrates the 
probity and firmness of the court in the impartial administra- 
tion of justice, adherence to due process of law, and their 
defiance of the threats of the Governor to depose them if they 
did not obey his orders, than the following passage from the 
famous "Atticus Letter," addressed to Tryon after he became 
Governor of New York, and said to have been written by 
Maurice Moore, one of the justices of the court: 

"Never were criminals more entitled to every lenity the 



44 The Star of Empire 

law could afford them ; but, sir, no consideration could abate 
your zeal in a cause you had transferred from yourself to your 
sovereign. You shamefully exerted every influence of your 
character against the lives of these people. As soon as you were 
told that an indulgence of one day had been granted to two men 
to send for witnesses, who actually established their inno- 
cence, and saved their lives, you sent an aide-de-camp to the 
judges and attorney general, to acquaint them that you were 
dissatisfied with the inactivity of their conduct, and threatened 
to represent them unfavorably in England if they did not pro- 
ceed with more spirit and dispatch. Had the court submitted 
to influence, all testimony on the part of prisoners would have 
been excluded ; they must have been condemned to a man. 
You said that your solicitude for the condemnation of these 
people arose from your desire of manifesting the lenity of 
government in their pardon. How have your actions contra- 
dicted your words ! Out of twelve that were condemned, the 
lives of six only were spared." (Col. Rec, VHI, 718-727. In 
Virginia Gazette, Nov. 7, 1771.) 

The relentless Tryon was succeeded as Governor by Jo- 
siah Martin, who found, on taking office, that the insurrection 
was now completely stamped out. In reply to the Governor's 
request as to whether the outlaws could be tried under the 
riot act, already explained, the Superior Court justices, in- 
dividually, filed opinions, the consensus of which was that the 
defendants could not be treated as outlaws under the above 
act, but that they could be tried under any other law, such as 
the law of treason. (Col. Rec, IX, 333-339.) 

In response to Martin's letter, laying the matter before the 
home government. Lord Hillsborough replied that the King 
authorized the Provincial Assembly to pass an act of grace, 
pending His Majesty's decision. The provincial upper house 
rejected this act; but at the beginning of the Revolution, the 
King, as a matter of policy, issued through the Governor a 
proclamation of pardon for all who had been concerned in 
the Regulation, with the single exception of Husband. (Col. 
Rec, X, 90 and 405.) 



The: Star of Empire 45 

The most accurate and concise statement of the Regulation 
troubles, their causes and violences, is contained in Governor 
Martin's letter to Lord Dartmouth of November 28, 1772, fol- 
lowing a tour through the back counties, and personal dis- 
cussion of the recent insurrectionism with people of all classes. 
He gave it as his matured conviction, a conviction which must 
appeal to all who have studied in detail this phase of our early 
history — that the people had been "grievously oppressed by 
the sheriffs, clerks and the subordinate officers of govern- 
ment, and exceedingly moved my compassion ; but on the 
other hand, I can assure your lordship there was not wanting 
evidence of the most extravagant licentiousness and criminal 
violence on the part of these wretched people, which (being) 
provoked by the abuse I discovered, or by other causes that 
might be inscrutable to me, seems at length to have urged 
matters to a crisis that necessarily terminated in bloodshed. 
Upon the whole, I am not without hopes, my Lord, that the 
vigorous measures taken by my predecessors under those cir- 
cumstances may have a tendency to keep under the disorderly 
spirit." (Col. Rec, IX, 357-358. Also ibid., IX, 330.) 



CHAPTER VII 

The Inauguration of Western Expansion 

The influence of the War of the Regulation upon the 
movement of westward expansion has never been accurately 
traced by historians. Just as the Scotch Highlanders, who 
had been forced to take the oath of allegiance to the British 
crown after the bloody disaster at Culloden, kept the faith and 
were Tory virtually to a man in North Carolina during the 
Revolution ; so the Regulators who remained in North Caro- 
lina kept their faith and became consistent Tories, largely in 
consequence of the oath of allegiance they took to the British 
crown after Alamance. But there was another element of the 
Regulators, who represented the true American spirit — men of 
the stamp of Daniel Boone and James and Charles Robertson, 
who constituted the vanguard of the army of westward ex- 
pansion. These true Americans, distraught by apparently ir- 
remediable injustices, even before Alamance had plunged fear- 
lessly into the wilderness, seeking beyond the mountains a new 
birth of liberty, lands of their own selection free of cost or 
quit rents, and a government of their own choosing and own 
control. Indeed the feverish movements of the people, stim- 
ulated by the thousands of pioneers who were annually enter- 
ing North Carolina or passing through toward the beckoning 
Southwest, had set in motion a wave of migration across the 
mountains as early as 1769. But after the battle of Alamance, 
the liberty-loving men of Regulating instincts swept in a great 
tide into the northeastern region of Tennessee. Somewhat 
later, many of these eagerly followed Henderson and Boone 
in organizing the Colony of Transylvania. "They played a 
glorious part," says the historian Bancroft, "in taking posses- 
sion of the Mississippi Valley, towards which they were car- 
ried irresistibly by their love of independence. It is a mistake 
if any have supposed that the Regulators were cowed down 
by their defeat at the Alamance. Like the mammoth, they 
shook the bolt from their brow and crossed the mountains." 

The proclamation of George IV in 1763, forbidding the 
eastern colonists to settle on lands to the west of a line join- 

(46) 



The Star of Empire 47 

ing the head-springs of the rivers flowing into the xA.tlantic, 
was one of the shaping causes in awakening the resistance 
of the American people to the narrow-visioned, blundering 
governmental policies of Great Britain. In their steady pro- 
pulsion westward of the frontier line and their progressive, 
irresistible settlemient of lands from which they were impo- 
tently debarred by royal proclamation, the colonists quietly 
flouted the authority claimed and exercised by the English 
sovereign. By virtue of her hazy charter, claiming "from 
sea to sea," Virginia laid claim to almost the entire interior 
of the continent. This vast territory beckoned to prospec- 
tive settlers ; and North Carolina, under the terms of her 
charter, laid claim to an extensive western area. The time 
was ripe for a great leader, far-sighted, aggressive^ pru- 
dent — a territorial expansionist who might prepare the ground 
for a great westward migration of the people and the estab- 
lishment of a permanent settlement in the heart of the trans- 
montane wilderness. 

George Washington expressed the secret belief of the pe- 
riod when he hazarded the judgment that the Royal Proclama- 
tion of 1763 was a mere temporary expedient to quiet the 
minds of the Indians, and was not intended as a permanent 
bar to westward expansion. Some years earlier, Richard 
Henderson, with the continental vision of Washington, had 
come to the conclusion that the uncharted West offered un- 
limited possibilities in the shape of reward to pioneering 
spirits, with a genuine constructive policy, willing to ven- 
ture their all in vindication of their faith. George Wash- 
ington, acquiring vast tracts of western land by secret pur- 
chase, indirectly stimulated the powerful army that was car- 
rying the broad-axe westward; Richard Henderson, with a 
large- visioned, constructive policy of public promotion, coloni- 
zation and settlement of the virgin West, directly conferred 
large benefits upon the nation by his resolution and aggres- 
siveness. Washington and Henderson were factors of crucial 
importance in the settlement of the West and the advance of 
the pioneer army into the wilderness of Tennessee, Kentucky, 
and Ohio. 



CHAPTER VIII 
An Early Land Company 

During the early days of his legal practice in Salisbury, 
Richard Henderson formed the acquaintance of Daniel Boone, 
a young hunter and scout with only a local notoriety, who 
lived a few miles away and frequently attended the terms 
of court. Col. John Williams, of Granville, Henderson's 
law-partner, and Col. Thomas Hart, sheriff of Orange county, 
also knew Boone who, though very poor, impressed these 
men with his sterling virtues of trustworthiness and in- 
tegrity. From Boone, who had traveled into the Holston 
region as early as 1760, these three men learned of the 
beauty and fertility of the Western lands, and were thrilled 
with the glowing accounts which Boone gave of his wander- 
ings as hunter and explorer. Accordingly, they agreed among 
themselves to engage Boone to spy out the land for them, 
and to report to them on his return. As early as 1764, Boone 
was spying out the Western lands as the agent of Richard 
Henderson, and inquiring of the "Long Hunters," who had 
penetrated further to the westward than himself, as to the 
"locography and geography of the country." 

It may be that Henderson was retarded in his plans by 
the Royal Proclamation of 1763; it may be that his plan for 
securing title to vast tracts of Western lands was not yet 
matured. Whatever the cause certain it is that no move 
was made by him until the after the treaty of Fort Stanwix 
in 1768. According to this treaty, Great Britain acquired by 
purchase from the Six Nations their unwarranted claim to 
all the territory east and southeast of the Ohio and north of the 
Tennessee rivers — a vast region including Kentucky and im- 
mense portions of Tennessee and West Virginia. This treaty 
acted as a great stimulant to Western colonization and Hen- 
derson realized that another decade would mark an epoch in 
the history of American civilization. At the same time, every- 
one in North Carolina realized the absurdity of the claim 

(48) 



t^: 




COLONEL RICHARD HENDERSON 

President of the Colony of 

Transylvania 



The Star of Empire 49 

of the Northern tribes to the Kentucky area — for it had been 
claimed from time immemorial by the Southern Indians, the 
Cherokees, the aboriginal occupants of what is now Tennessee. 

Richard Henderson immediately understood the significance 
of the Treaty of Fort Stanwix, since it extinguished the claim 
of the Northern tribes to the Kentucky area. The valid owner- 
ship of the territory being actually vested in the Cherokees, 
Henderson foresaw that the lands could be acquired only by 
lease or by purchase from that tribe. Although Boone had 
once actually penetrated the wilderness of Kentucky on its 
northeast corner, he was unaware of it ; and he was as eager 
to explore the fabled region as was Henderson to have him 
do so. His old companion in Braddock's campaign, John 
Findlay, now happened into the valley of the Yadkin and 
told Boone that he believed he could guide him across the 
mountains to Kentucky v/hich he had visited on a trading ex- 
pedition some years previous. 

Boone doubtless held his last conference before starting 
West with Judge Henderson at Salisbury, where he was pre- 
siding over the Superior Court ; and plans were soon outlined 
for Boone's journey of exploration. At this time Boone was 
very poor and in debt to the law firm of Williams and Hen- 
derson. His desire to pay off his indebtedness to Hender- 
son made him all the more ready to undertake the exhaustive 
tour of exploration in company with Findlay and others. 

In his autobiographical account, Boone has described the 
details of his two years' sojourn in Kentucky, part of the 
time hunting on his own account, part of the time prospect- 
ing and seeking out suitable sites for settlement, colonization 
and defence, in the interest of Henderson and his associates. 
In his description of the richness, beauty and fertility of the 
country, in which he is supported by contemporary annalists, 
such as Felix Walker, Thomas Hanson, and Nathaniel Hen- 
derson, Boone expresses himself (through the mouth of the 
bombastic Filson) in glowing terms: 

"Nature was here a series of wonders and a fund of de- 
light. Here she displayed her ingenuity and industry in a 



50 The Star of Empire 

variety of flowers and fruits, beautifully colored, elegantly 
shaped and charmingly flavored ; and we were diverted with 
innumerable animals presenting themselves perpetually to our 
view." On his return in 1771, from his remarkable journey 
beyond the Cumberland, he was immediately engaged by Hen- 
derson to act as his secret and trusted ambassador to treat 
with the Cherokee Indians for the purchase of this imperial 
domain. The project upon which Henderson now embarked 
was the first great movement of westward expansion, a move- 
ment which "for timeliness, heroism and ultimate success is 
without a parallel in our annals." This enterprise, said Gov- 
ernor Morehead, of Kentucky, in 1840, "in point of magnitude 
and peril, as well as constancy and heroism displayed in its 
execution has never been paralleled in the history of America." 

At the time of Boone's return to North Carolina, Judge 
Henderson was embroiled in the exciting issues of the Regu- 
lation. His plan to inaugurate his great Western venture was 
thus temporarily frustrated ; but the dissolution of the Su- 
perior Court, under the "Judiciary Act of 1767," took place in 
1773. Richard Henderson was now left free to devote him- 
self unreservedly to the monumental project towards which 
the investigations of years had led. From this time for- 
ward, Richard Henderson sheds the glamor of local fame and 
enters into national history as one of the remarkable figures 
and notable constructive pioneers in the early history of the 
American people. 

In the meantime, Daniel Boone grew impatient over the 
delay; for he was eager to carry his family with him into the 
heart of the Western wilderness. Ignoring the crucial ques- 
tion of title and heedlessly disregarding the inconceivable dan- 
gers of encroaching upon the territory of hostile Indians, 
Boone recruited a body of settlers, and on September 25, 1773, 
started from the Yadkin Valley in North Carolina for Ken- 
tucky with a colony numbering eighteen men, besides women 
and children. Unsuspicious of danger, a detachment of Boone's 
force was attacked by a band of Indians, and seven of them. 



The Star of Empire 51 

including Boone's own son, were killed. They were now joined 
by a party of forty fellow emigrants from the Valley of Vir- 
ginia and Powell's Valley; and Boone was anxious to pro- 
ceed. But the others demurred ; and despite Boone's expostu- 
lations, the whole party scattered and returned to the settle- 
ments. This incident is significant evidence that Boone was 
deficient in executive ability, the power to originate and exe- 
cute schemes of colonization on a large scale. A marvelous 
scout, a skilled hunter, a backwoodsman without a peer, a 
man of rare balance and sagacity of judgment, Boone lacked 
constructive leadership and executive genius. He was a per- 
fect instrument for executing the designs of others. It was 
not until the creative and executive brain of Richard Hender- 
son was applied to the vast and daring project of Western 
colonization that it was carried through to a successful 
termination. 

In 1774 Henderson organized on a more extensive footing 
under the name of the Louisa Company, the land company 
first known as Richard Henderson and Company which seems 
to have been originally composed of Col. John Williams, Col. 
Thomas Hart, and himself. The name of the Louisa Com- 
pany was quickly changed to Transylvania Company ; and the 
purpose of the organization was to make a purchase of lands 
and to effect a settlement thereon, on a basis of peace and 
legal right, contrary to the misguided plan of Boone, who 
boldly intended to fight his way into possession of territory 
to which he had no legal claim. The ownership of all the 
Kentucky region, with the exception of the extreme north- 
eastern section, remained vested in the tribe of Cherokee In- 
dians. Their title to the territory had been acknowledged by 
Great Britain through her Southern Agent of Indian Affairs, 
John Stuart, at the Treaty of Lochaber in 1770. Henderson 
was now confronted with a two-fold task: first, to secure an 
indisputable title from the Indian owners ; and second, to 
surmount the far more serious obstacle of royal edict against 
the purchase of land from the Indians by private individuals 
without a crown grant. Through the highest English legal 



52 The Star of Empire 

authorities Henderson learned that according to the most re- 
cent legal decision rendered in England on the subject, pur- 
chases by individuals from Indian owners were legally valid. 
Without royal grant, Patrick Henry in Virginia, in 1774, was 
negotiating for the purchase of part of the very territory 
Henderson desired. Two years earlier the Watauga settlers 
leased from the Cherokees the lands upon which they resided — 
a preliminary to subsequent purchase. 

Had Richard Henderson made his purchase from the 
Cherokees without taking further steps to assure himself as 
to the legality of his actions, he would doubtless have been 
justified by the popular sentiment of the day, in view of the 
universal disregard of the Royal Proclamation of 1763. But 
having served on the highest court of law in the Colony of 
North Carolina, he was determined to secure the highest legal 
opinion of Great Britain. The opinion handed down by the 
Lord Chancellor and the Attorney General cleared away the 
legal difficulties ; and Henderson next inaugurated active steps 
toward arranging a treaty with the Cherokee Indians. Daniel 
Boone had just returned from the campaign of General An- 
drew Lewis against the allied Indian tribes, resulting in a vic- 
tory for the white men over the red men at the battle of the 
Great Kanawha, on October 10, 1774. This victory put a 
stop to Dunmore's War, assured peace with the Indians for 
the succeeding year, and greatly reduced the dangers inci- 
dent to colonization of the Kentucky wilderness. 

Richard Henderson associated with himself in the great 
enterprise eight gentlemen of probity and distinction, either his 
relatives, connections, friends, or emigrants to North Carolina 
from his boyhood home in Hanover county, Virginia. The 
partners in the Transylvania Company were the three broth- trTy 

ers, Nathaniel, David and Thomas Hart, especially noted for >^^'' ^ 
their connections and associations with Henry Clay and 
Thomas Hart Benton ; James Hogg, of the family of the 
"Ettrick Shepherd," a prosperous merchant and eminent citi- 
zen ; and WilHam Johnston, the chief of the Scotch merchants 
of his section, an emigrant from Scotland, of distinguished 



The Star of Empire 53 

connections — all residing in the county of Orange ; John Lut- 
trell, a native of Westmoreland County, Virginia, who was af- 
terwards swept into the Revolution and killed in battle ; John 
Williams, the distinguished lawyer, Leonard Henley Bul- 
lock, former high sheriff, and Richard Henderson, as president 
and legal adviser — all three residing in the adjacent county of 
Granville. This group of strong men and representative citi- 
zens gave stability and driving force to the momentous un- 
dertaking upon which they were now embarked. 

In the autumn of 1774, Colonel Richard Henderson, ac- 
companied by Captain Nathaniel Hart and a guide, journeyed 
to the Otari towns of the Overhill Cherokee Indians to open 
negotiations for the purchase of territory. The Indian chiefs 
expressed a willingness to treat with Henderson; and as a 
precautionary measure, Atta-kulla-kulla, or "The Little Car- 
penter," the most celebrated and influential Indian among all 
the tribes then known, a young Indian man and an Indian 
woman, accompanied Henderson and Hart on their return 
home in November, in order to see and examine the goods 
offered as the consideration. Greatly to Henderson's satisfac- 
tion, these goods met with the entire approval of the Indians. 
The goods for which 10,000 pounds sterling was paid, were 
purchased at Cross Creek ( Fayetteville, N. C.) on December 
6, 1774, and soon afterwards sent forward in wagons to the 
Watauga settlement. 



CHAPTER IX 
The; Great Treaty and the Wii^derness Road 

It is interesting to note that just prior to the public an- 
nouncement throughout the Colony of this vast scheme of 
promotion and colonization, Dr. J. F. D. Smyth, the British 
emissary, met Richard Henderson at the home of Col. John 
Williams. Although Smyth in his travels as British scout 
had seen the greatest men in the American Colonies, he pro- 
nounces Richard Henderson "one of the most singular and 
extraordinary persons and excentric geniuses in America, and 
perhaps in the world." When on Christmas Day, 1774, there 
were spread broadcast throughout the Colony of North Caro- 
lina "Proposals for the encouragement of settling the lands 
purchased by Messrs. Richard Henderson & Co. on the 
branches of the Mississippi River from the Cherokee tribe 
of Indians," a genuine sensation was created. In a letter to 
Andrew Miller (January 28, 1775), Archibald Neilson, deputy 
auditor of the Colony, inquired anxiously, and apparently not 
without reason: "Pray is Dick Henderson out of his head?" 
As it happened, Dick Henderson was never more coolly in 
possession of his head than now ; nor had he ever hitherto put 
it to uses of such momentous promise. Though trembling in 
fear of the coming revolutionary cataclysm, Governor Josiah 
Martin thundered forth in a forcible-feeble proclamation 
against "Richard Henderson and his confederates," in their 
"daring, unjust and unwarrantable proceeding." In letters to 
the Earl of Dartmouth, Martin speaks scathingly of "Hen- 
derson, the famous invader" and of "the infamous Hender- 
son and his associates" whom he dubs "an infamous company 
of land Pyrates." He denounced their project as a "lawless 
undertaking" and "an infraction of the royal prerogative," 
and threatened the company, if it persisted in its course, "with 
the pain of His Majesty's displeasure and the most rigorous 
penalties of the law." 

To these fulminations of the royal governors, Henderson 

(54) 



The Star op Empire 55 

and his associates paid no heed. Daniel Boone was despatched 
to summon the tribe of Cherokee Indians to the Sycamore 
Shoals of the Watauga (near present Elizabethton, Tennes- 
see) for a treaty. Some twelve hundred Indians, men, women 
and children, virtually the entire tribe, assembled at the treaty 
ground. From the 14th to the 17th of March, in a fair and 
open treaty, Colonel Richard Henderson in behalf of the Tran- 
sylvania Company purchased from the Cherokee Indians up- 
wards of twenty million acres, comprising portions of the pres- 
ent States of Virginia and Tennessee, and almost all of the 
present State of Kentucky. 

News of the proposed treaty quickly reached young Isaac 
Shelby at Fort Blair ; and his pioneering instinct unerringly 
drew him to the focus of interest, the treaty ground. We are 
fortunate in having handed down to us a description of the 
treaty on the part of young Isaac Shelby, an eye-witness. It 
was proved, by the investigation conducted at the instance of 
the State of Virginia, that the treaty was conducted "with an 
honesty unparalleled in that day in such matters." From the 
deposition of Isaac Shelby (December 3, 1777), the follow- 
ing is deserving of quotation here : — 

"That in March, 1775, this Deponent was present at a 
Treaty held at Wattaugha between the said Henderson and the 
Cherokee Indians : that the deponent then heard the said Hen- 
derson call the Indians, where the deed by which the said Hen- 
derson now claims was going to be signed, and declared that 
they would attend to what was going to be done : that the de- 
ponent believes the courses in the said Deed contained, to be 
the very courses which the said Henderson read therefrom to 
the Indians and were interpreted to them. That the said Hen- 
derson took the said Deed from among several others lying 
on a table, all of which appeared to the Deponent to be of 
the same tenor with that which he read." 

It was doubtless at some time during the course of the 
treaty that Judge Henderson, attracted by the sterling qual- 
ities of young Shelby and by his manifest eagerness to 
connect himself with Henderson's plan of colonization, se- 



56 The; Star of Empire; 

cured the promise of his services in the future, following the 
expiration of his term of enlistment, to act as surveyor in Ken- 
tucky for the Transylvania Company. 

Once Richard Henderson had secured formal possession of 
this vast territory for the Transylvania Company, he immed- 
iately took active steps toward securing actual possession. As 
a preliminary step and even while the negotiations were still 
in progress, he commissioned Boone to mark out a road from 
the established settlements westward to the new possessions. 
The company of road builders, some 30 in number, placed 
themselves "under the management of Colonel Boone, who 
was to be our pilot and conductor through the wilderness to 
the promised land." So says Felix Walker, of Rutherford 
County, N. C, one of the party. About 10 days later Richard 
Henderson with some 30 men, set ofT from the treaty ground 
over the path which Boone and his axemen had cut out. Hender- 
son had no intention of acting as a mere financial promoter of 
the enterprise of settling the wilderness. He was of the stuff that 
empire builders are made. The trials and vicissitudes of the 
journey, for both the parties under Henderson and Boone re- 
spectively, were arduous in the extreme. The forests bristled 
with Indians, numerous settlers were fleeing from the wilder- 
ness in dread of Indian forays, and it was supremely difficult 
to hold the men in line. Again and again the fate of the ex- 
pedition hung in the balance. It was the courage and energy 
of Henderson, ever the man of action, and his unswerving re- 
solve to go forward in the face of all named and unnamed 
dangers which carried through the armed "trek" to a victor- 
ious conclusion. 

As they were encamped near the site of the future Boones- 
borough, Boone and his party were attacked by Indians. On 
April 1, Boone despatched a letter to Henderson, which ex- 
presses the complete confidence which the backwoodsman felt 
in the leadership of Henderson. It is one of the greatest con- 
temporary tributes to Henderson and the company which he 
was leading. 



The; Star of Empire; 57 



"Dear Colonel 



"After my compliments to you, I shall acquaint you with 
our misfortune. On March 25 a party of Indians fired on my 
company about half an hour before day, and killed Mr. 
T witty and his negro, and wounded Mr. Walker very deeply, 
but I hope he will recover. On March 28, as we were hunt- 
ing for provisions, we found Samuel Pate's son, who gave us 
an account that the Indians fired on their camp on the 27th 
day. 

"My brother and I went down and found two men killed 
and sculped, Thomas McDowell and Jeremiah McPheeters. 
I have sent a man down to all the lower companies in order 
to gather them all to the mouth of Otter Creek. 

"My advice to you, sir, is to come or send as soon as pos- 
sible. Your company is desired greatly, for the people are 
very uneasy ; but are willing to stay and venture their lives 
with you, and now is the time to flusterate their (the Indians') 
intentions, and keep the country, whilst we are in it. 

"If we give away to them now it will ever be the case. 
This day we start from the battleground, for the mouth of 
Otter Creek, where we shall immediately erect a fort, which 
will be done before you can come or send — then we can send 
the men to meet you, if you send for them. 

"Daniel Boone. 

"We stood on the ground and guarded our baggage till 
day, and lost nothing. We have about 15 miles to Cantuck 
(the Kentucky River) at Otter Creek. 

"D. B." 

The incidents of this historic march are well authenticated ; 
the details I have embodied in the work of which this and 
subsequent instalments are but fragmentary outlines. One 
of the most important of western historical documents is the 
autograph diary of Richard Henderson, lent to the historian 
Mann Butler by Richard's brother. Pleasant. 

There is the simplicity of tense reality in the following 
entry in Henderson's diary : — 



58 The: Star of Empire 

"About 11 o'clock received a letter from Mr. Luttrell's 
camp that there were five persons killed on the road to the 
Cantuckee by Indians. Captain Hart, upon the receipt of this 
news, retreated back with his company and determined to set- 
tle in the valley to make corn for the Cantucky people. The 
same day (Friday, April 7) received a letter from Dan Boone, 
that his company was fired upon by the Indians (who) killed 
two of his men, though he kept the ground and saved the 
baggage." 

This intelligence spread consternation and even terror into 
the hearts of strong men, and caused some to turn back. 
Abraham's Lincoln's grandfather, who was with Henderson's 
party, was afraid to advance. But Richard Henderson was 
made of sterner stuff. Without hesitation he commanded a 
forward march. The settlement of the West rested upon the 
shoulders of Henderson, and he quavered not under that mo- 
mentous burden. Nor did it tend to allay the fears of his fol- 
lowers or to diminish their apprehension to meet, day after 
day, parties of panic-stricken fugitives which, in the aggregate, 
totaled more than twice the number in his little band. 

Henderson's diary is laconically, simply eloquent of his 
determination to go forward. The day after the receipt of 
the letter from Boone (April 8), there is the following signifi- 
cant entry : — 

"Started about 10 o'clock. Crossed Cumberland Gap about 
four miles. Met about 40 persons returning from the Can- 
tucky on account of the late murders by the Indians. Could 
prevail on only one to return." 

There are few if any more memorable pictures in all of 
western history than this : Richard Henderson, a man a little 
above average height, broad of shoulders but not fleshy, clad 
in the rough garb of the pioneer, standing firmly planted in 
the "Wilderness Trail" on a ragged spur of the grey-grained 
Cumberlands, pointing significantly forward to the "dark and 
bloody ground," and pleading ineffectually with the pale and 
disheartened fugitives to turn about and join the dangers and 



The; Star of Empire 59 

vicissitudes of pioneer conquest. For this indeed was the 
destined mission of Henderson's remarkable career, to stand 
firm and to give bold leadership to that momentous, crucial 
movement in behalf of permanent western colonization. 

After various trials and vicissitudes, the founder of Ken- 
tucky, with his little band, at least reached the destined goal of 
their arduous journeyings. Henderson's record on his birth- 
day runs: "Thursday the 20th (April) Arrived at Fort 
Boone on the Mouth of Oter Creek Cantuckey River where 
we were Saluted by a running fire of about 25 Guns ; all that 
was then at Fort. . . . The men appeared in high spirits 
& much rejoiced in our arrival." It is a coincidence of historic 
interest that just one day after the embattled farmers at Lex- 
ington "fired the shots heard round the world," the echoing 
shots of Boone and his sturdy backwoodsmen rang out to an- 
nounce the arrival of the Proprietor of Transylvania and the 
birth of the American West. 



CHAPTER X 
Transylvania 

Soon after his arrival at Fort Boone, Judge Henderson 
busied himself with having erected, according to plans of his 
own, a large stockaded fort. His greatest concern was to 
unite the people for the purpose of establishing an independ- 
ent government. "Our plan of legislation," he says in his 
diary (May 8, 1775), "the evils pointed out . . . the rem- 
edies to be applyed &c &c &c were Acceded to without Hesi- 
tation. The plann was plain & Simple . . . 'twas nothing 
novel in its essence — a thousand years ago it v^as in use, and 
found by every Year's experience to be unexceptionable. We 
were in four distinct settlem*^. Members or delegates from 
every place by free choice of Individuals they first having en- 
tered into writings solemnly binding themselves to obey and 
carry into Execution Such Laws as representatives should 
from time to time make. Concurred with, by A Majority of 
the Proprietors present in the Country." On May 23, 1775, 
the pioneers from the various small settlements and camps 
nearby assembled on the green under a mighty plane tree at 
Boonesborough. 

In his address opening the assembly. Judge Henderson used 
these memorable words : — 

"You are about a work of the utmost importance to the 
well-being of this country in general, in which the interest and 
security of every and each individual are inseparably con- 
nected. 

"You, perhaps, are . . . placing the first corner stone 
of an edifice (which) can only become great in proportion to 
the excellence of its foundation. ... If any doubt remain 
amongst you with respect to the force or efficiency of whatever 
laws you now, or hereafter make, be pleased to consider that 
all pozver is originally in the people: make it their interest, 
therefore, by impartial and beneficent laws, and you may be 
sure of their inclination to see them enforced." 

(60) 



The: Star of Empire 61 

The government which was established here was probably 
the most unique colonial government ever set up on this con- 
tinent. The proprietary form of government, greatly democ- 
ratised, was adopted by the pioneers under Henderson's guid- 
ance. From one who, though still nominally under royal rule, 
vehemently asserts that the source of all political power is the 
people, and that "laws derive force and efficiency from our 
mutual consent," western democracy thus born in the wilder- 
ness was "taking its first political lesson." 

A land office was formally opened, deeds issued, and a store 
established which supplied the colonists with powder, lead, 
salt, osnaburgs, blankets, and the chief necessities of pioneer 
existence. Here was a marvellous country that was actually 
being occupied permanently by patriotic Americans. And 
people nowadays can scarcely realize the delight, and well- 
nigh rapture, of the pioneers in the wonderful country they 
were colonizing. "To enter upon a detail of the Beauty & 
Goodness of our Country," writes Nathaniel Henderson to a 
friend, "would be a task too arduous. . . . Let it suffice 
to tell you it far exceeds any country I ever saw or heard of. 
I am conscious its out of the power of any man to make you 
clearly sensible of the great Beauty and Richness of Ken- 
tucky." Writing to his brother Jonathan from Leestown, the 
young George Rogers Clark, soon to plot the downfall of 
Transylvania, enthusiastically says (July 6, 1775) : "A richer 
and more Beautiful County than this I believe has never been 
seen in America yet." 

It is a memorable feature of the career of the young Isaac 
Shelby, later to become the first governor of Kentucky, that 
he devoted a year of his life to scouring the wilds of Ken- 
tucky and surveying tracts of land for the pioneers who settled 
under the auspices of the Transylvania Company. The gar- 
rison of Fort Blair, where Shelby was located, was not dis- 
banded until July, 1775; and immediately thereafter he jour- 
neyed to Kentucky and engaged in the business of land sur- 
veying for the proprietors of the Transylvania Company. He 
surveyed numerous tracts of land for others, and also made a 



62 The Star of Empire 

number of entries of land for himself in Judge Henderson's 
land office. Two years later, when testifying before the Vir- 
ginia legislative committee, Shelby said : "This Deponent has 
made several Entries for lands in Mr. Henderson's Office, but 
does not conceive himself to be in any manner interested in the 
Event of the dispute, between the Commonwealth of Virginia 
and the said Henderson." After nearly a year's service as 
surveyor, Shelby's health finally became impaired, owing to 
continued exposure to wet and cold, combined with the fre- 
quent necessity for going without either bread or salt. On 
this account he was compelled to return to the settlements on 
Holston. 

Judge Henderson cherished the hope of having Transyl- 
vania received by the Continental Congress as the fourteenth 
American colony. At Oxford, in Granville County, North 
Carolina, on September 25, 1775, the proprietors of Transyl- 
vania held a meeting and elected James Hogg as a delegate, 
armed with an ably prepared memorial, to the Continental 
Congress then in session at Philadelphia, petitioning for the 
recognition of Transylvania as the fourteenth member of the 
united colonies. The memorial reads in part as follows : 

"Having their hearts warmed with the same noble spirit 
that animates the United Colonies, and moved with indigna- 
tion at the late ministerial and parliamentary usurpation, it is 
the wish of the Proprietors of Transylvania to be considered 
by the Parliaments as brethren, engaged in the same great 
cause of liberty and mankind The memorial- 
ists please themselves that the United Colonists will take the 
infant colony of Transylvania into their protection; and they 
in return, will do everything in their power, and give such as- 
sistance in the general cause of America as the Congress shall 
judge to be suitable to their abilities." 

In their conversations with James Hogg, the Adamses, 
Samuel and John, displayed keen interest in the affairs of the 
wilderness colony; but voiced strong objection to certain of 
its features. Jefferson advised the Virginia delegates to use 
their charter, not to destroy the claims of the Transylvania 



The Star of Empire 63 

Company, but "to prevent any arbitrary or oppressive govern- 
ment to be established within the boundaries of it." To Hogg, 
Jefferson stated that "it was his wish to see a free government 
estabHshed at the back of theirs [Virginia's] properly united 
with them." He would not consent, however, for Congress 
to acknowledge the Colony of Transylvania until it had been 
acknowledged by Virginia. Opposition was expressed to the 
proprietary form of government, quit-rents were regarded as a 
form of vassalage, and the hope was generally expressed that 
the proprietors would establish a "free government" and, as 
Hogg quotes, "render ourselves immortal." 

James Hogg's embassy to Philadelphia was barren of re- 
sults ; and this failure marked the beginning of the end of 
the Colony of Transylvania. Henderson was defeated prin- 
cipally through the opposition of two men: Patrick Henry, 
who always sought to extend in all directions the power and 
bounds of the "Ancient Dominion" of Virginia; and George 
Rogers Clark, who represented Harrodsburg, the rival settle- 
ment to Boonesborough in Kentucky, and as a Virginian 
wished to see Transylvania legislated into a dependency of 
Virginia. 

The mantle of leadership in the West, thitherto worn by 
Henderson as colonizer and law giver, now fell upon the 
shoulders of Clark, who forced upon Virginia his own ap- 
pointment as virtual military dictator of the trans-Alleghany 
region. Under the pressure of Henderson's vigorous repre- 
sentations, Virginia finally acknowledged the validity of the 
claims of the Transylvania Company as against the Cherokee 
Indians, but frankly confiscated the purchase and made of 
Transylvania a county of Virginia. In consideration of the 
very great expense incurred by Richard Henderson and Com- 
pany in purchasing and settling the said lands, "by which the 
Commonwealth is likely to receive great advantage, by in- 
creasing its inhabitants and establishing a barrier against the 
Indians," Virginia granted to Richard Henderson and Com- 
pany two hundred thousand acres of land situated between 
the Ohio and Green rivers, opposite the present site of Evans- 



64 The Star of Empire 

ville, Indiana. North Carolina later granted to the company a 
like amount on Powell and Clinch rivers in Tennessee. As 
just compensation, these grants were inadequate to measure 
the value of the service in behalf of permanent western coloni- 
zation rendered by the Transylvania Company. 

At its own expense, the Transylvania Company had suc- 
cessfully colonized the Kentucky area with between two and 
three hundred men. With true revolutionary ardor, the pro- 
prietors successfully defied the royal authority as expressed 
through the crown governors of North Carolina and Virginia. 
Although Henderson and his associates failed to secure recog- 
nition of Transylvania as the fourteenth American colony, 
they furnished to the world, as Hulbert says, "one of the most 
heroic displays of that typical American spirit of comprehen- 
sive aggrandizement of which so much is heard to-day." Un- 
questionably the strenuous borderers, with their roving in- 
stincts, would in any event ultimately have established im- 
pregnable strongholds in the Kentucky area. But had it not 
been for the Transylvania Company and Daniel Boone, no se- 
cure stronghold, to protect the whites against the savages, 
might have been established and fortified as early as 1775. 
In that event the American colonies, convulsed in a titanic 
struggle, might well have seen Kentucky overrun by savage 
hordes, led by English officers, throughout the Revolution. 
In consequence, the American colonies at the close of the 
Revolution would probably have been compelled to leave in 
British hands the vast and fertile regions beyond the Alle- 
ghanies. 



CHAPTER XI 
The Aftermath of the Revolution 

The early history of Kentucky and the struggles made to 
secure statehood for the trans-Alleghany region constitute 
a story closely associated with the careers of Richard Hen- 
derson and Isaac Shelby. Henderson conceived the idea of 
making Transylvania the fourteenth American colony, engag- 
ing Daniel Boone as his principal scout in traversing the Ken- 
tucky region, and Isaac Shelby as a leading surveyor in sur- 
veying the land. The actual advance into Kentucky in 1775, 
headed by Henderson with Boone as advance guard, was made 
possible by the defeat of the Indians at the Battle of the Great 
Kanawha in 1774, in which Isaac Shelby played a prominent 
part. After Kentucky was settled in 1775 and 1776, Hender- 
son turned his activities toward Tennessee and the settlement 
of the Cumberland region and Shelby threw himself actively 
into the struggle for American independence. 

Elsewhere the present writer has told the stories of these 
two men in reference to those events.* The purpose of the 
remainder of the present work is to describe the difficult 
role played by Isaac Shelby in the early history of Kentucky 
subsequent to the close of the Revolution. No just, adequate 
or detailed account has ever hitherto been given of the later 
career of Isaac Shelby — a career intimately associated with 
the earlier decades of the history of Kentucky following the 
conclusion of peace with Great Britain in 1783. 

At the close of the war, Isaac Shelby and his wife took up 
their abode on the first settlement and preemption granted in 
Kentucky. For the next decade he devoted himself to mak- 
ing a livelihood by the cultivation of the soil, to which he had 
been bred in early life. Says the Hon. W. T. Barry, in his 
obituary address on Isaac Shelby: "He proved to be one of 
the best practical farmers in our country — by industry and 



* Richard Henderson : the Authorship of the Cumberland Compact and the 
Founding of Nashville, in the "Tennessee Historical Magazine," September, 1916; 
and Isaac Shelby: Revolutionary Patriot and Border Hero. Parts I and II, in the 
"North Carolina Booklet," January, 1917, and July, 1918. 

(65) 



66 The Star of Empire; 

judicious management his fortune was rapidly augmented. 
He was content to repose on the laurels he had won in the 
war of independence. His talents, his services and high repu- 
tation, gave him just claims to preferment. The people, too, 
eagerly solicited his services ; but he could never be induced 
to enter upon public life, unless the exigencies of his country 
rendered his services indispensable. . . Like Cincinnatus, 
he remained unambitious at his farm, enforcing, by his ex- 
ample, the duties of private life ; teaching industry, temper- 
ance, and economy; extending acts of benevolence and human- 
ity to his countrymen, and setting an example to afifectionate 
husbands, kind parents, and humane masters." 

The period from the close of the Revolution until 1792, 
in Kentucky, covers the struggles, oft-repeated, to secure the 
benefits of statehood. Ten separate conventions were held 
in close succession before Kentucky was finally admitted into 
the Union of States on June 1, 1792. On occasion, Shelby 
served in the conventions, convened for the purpose of obtain- 
ing a separation from the State of Virginia ; and he was a 
member of the convention which formed the first constitution 
of Kentucky in April, 1792. It is one of the most gratifying 
incidents in the early history of the West that John Sevier 
and Isaac Shelby, who together had planned the Battle of 
King's Mountain and so largely contributed by their personal 
efforts to the achievement of that decisive and pivotal victory 
of the Revolution, should have been rewarded by the suffrages 
of their countrymen in the choice of the first chief magis- 
trates, respectively, of Tennessee and Kentucky. Shelby was 
unanimously chosen as first governor of Kentucky by the 
board of election in May, 1792. For some days, he hesitated 
to accept an office of such high responsibilty — one, as he him- 
self modestly observed, which he conceived his walk through 
life had not qualified him to fill with real advantage to his 
country. However, regarding with veneration and respect 
the call of his fellow citizens, he consented, after mature re- 
flection, to accept. In passing through Danville, where ten 
preliminary conventions were held for separation from Vir- 



This Star of Empire; 67 

ginia, on his way to Lexington, first capital after admission to 
Union, he was presented by the inhabitants with an address 
in which the following words occur : "Unacquainted as to 
flattery or studied panegyrics, they only wish in the plain 
language of truth to express the great satisfaction they feel 
on the appointment, and of your acceptance of the office." 
Upon his arrival in Lexington, on June 4, he was likewise pre- 
sented with an address, containing the following expressions : 
"Truly sensible, that no other motive than a sincere desire to 
promote the happiness and welfare of your country, could have 
induced you to accept an appointment, that must draw you 
from those scenes of domestic ease and private tranquility, 
which you enjoy in so eminent a degree; . . . (and) hav- 
ing the fullest confidence in your wisdom, virtue and in- 
tegrity, we rest satisfied, that under your administration the 
Constitution will be kept inviolate, and the laws so calculated 
as to promote happiness and good order in the State." 

On June 6, the governor-elect repaired to the hall of the 
senate chamber, then in a log cabin, and delivered an address 
to the two houses assembled there — thus imitating the pro- 
cedure of his illustrious contemporary model, George Washing- 
ton — a procedure recently brought back into use by President 
Wilson. In his address. Governor Shelby urged the estab- 
lishment of public and private credit on the most solid basis; 
the speedy settlement of land disputes; the regulation of fu- 
ture elections, in such manner as to guard against undue in- 
fluence; the appointment of two senators; and the passage of 
a law to compel sheriflfs and other public officers to give se- 
curity for the due performance of their duties. In general, 
he urged upon all to make paramount the effort to secure the 
"prosperity of our common country." In particular, remarks 
were addressed to the House of Representatives, recommend- 
ing the raising of an adequate revenue for public exigencies 
and the appointment of commissions to fix on a place for the 
permanent seat of government. In the answer to the gov- 
ernor's address occurs the following interesting observation : — 
"It affords us pleasure that the voice of our country has called 



68 The; Star of Empire 

to the office of chief magistrate one who from an early period, 
has experienced inconveniences and dangers we have in com- 
mon been subject to, by our far removal from the assistance 
of government and our adjacent situation to hostile savages." 

This passage calls forcible attention to the condition of 
Kentucky as a frontier state. For years, like Tennessee, it 
had remained in an isolated situation, exposed to the sporadic 
attacks of the Indians and very imperfectly protected by arm- 
ed force. It is true that for a decade the average annual im- 
migration into Kentucky after 1777 was about 2,700 a year, 
and from 1786 to 1790, 12,000 a year. And this, in spite of 
the fact that the routes to Kentucky were persistently haunted 
by the savage men, who frequently fell upon travellers com- 
ing over the wilderness road and voyagers by the water routes, 
in particular the Ohio. The figures given by Judge Innis in 
1790 are appalling: that the Indians alone had killed 1,500 
persons during his seven years of residence in Kentucky. 

This sense of isolation and the belief that they were neg- 
lected by Washington were among the underlying causes of 
disaffection to the general government on the part of the peo- 
ple of Kentucky. The people in the east labored under the 
delusion that, in the difficulties with the Indians on the western 
frontier, the whites were generally the aggressors. Moreover, 
the British government, in flagrant disregard of the provisions 
of the treaty of peace, had failed to remove her troops from 
the northwestern posts. Whereas the general government had 
assumed the defence of the borders, the real meaning of the 
change proved disastrous to the people of the West, since the 
Federal troops stationed at the western frontier posts were 
entirely inadequate in numbers to cope with the situation, 
which involved the defence of a long and exposed frontier. 
Harman's expedition aganst the Indians in 1790 was marred 
by mismanagement and needlessly severe losses ; and the final 
outcome of the matter, as the result of the protests of the peo- 
ple of Kentucky to the general government, was that a local 
board of war was appointed in Kentucky, consisting of Scott, 
Innis, Shelby, Logan and Brown. 



The Star of Empire 69 

General Arthur St. Clair, although his appointment was 
distasteful to the people of Kentucky, was made commander 
of the United States Army in the West. Disregarding St. 
Clair, the Kentuckians in 1791 despatched an expedition 
against the Indians under Scott and Wilkinson, which so far 
as it went was completely successful. Nevertheless St. Clair 
in November of the same year headed an expedition against 
the Indians which met with disastrous defeat. It was hard 
upon these events that Shelby took up his duties as chief 
magistrate ; and one of his tasks was to proportion the defense 
to the immediate danger of the different quarters of the State 
so as to afford the best protection to the weak settlements. 

General Anthony Wayne — the "Mad Anthony" of his- 
tory — was eventually chosen as commander of the United 
States Army in the West to succeed St. Clair, who was Gov- 
ernor of the Northwest Territory; but this was only done 
after failure, both by local authorities and the general govern- 
ment, to negotiate a peace with the Indians. Pending the 
operations carried out by General Wayne, a new peril ap- 
peared upon the horizon which involved the governor and 
people of Kentucky and afforded the acid test of their al- 
legiance to the general government. 



J 



CHAPTER XII 
Isaac Shelby and the Genet Mission 

The famous episode in which Edmund Charles Genet, the 
representative of the new French Repubhc, played the highly 
dramatic leading role, is certainly one of the most extraordi- 
nary in our national annals. In order to understand the sig- 
nificance of the episode and its relation to Isaac Shelby, it is 
imperatively necessary to understand the popular temper in 
the country at that time, and in particular the temper of 
Kentucky. 

In Kentucky, one of the leading features of dissatisfac- 
tion with the federal government was the popular conviction 
that the leading Federalist statesmen of the country were luke- 
warm in advocacy of the demand for the opening of the Mis- 
sissippi to Western commerce. Ever since the excitement 
aroused by Jay's reputed proposal to cede to Spain for twenty- 
five years the navigation of the Mississippi River in return for 
commercial advantages to be enjoyed by the Eastern States 
alone, the temper of the Kentucky people had tended toward 
opposition to the Spaniards who held Louisiana and resolutely 
denied to the United States the free navigation of the Missis- 
sippi. The hostility towards the Spaniards was aggravated 
by the fact that they were allied in the war against France 
with England, which still retained the Northwest posts in de- 
fiance of her treaty obligations. The inevitable result was to 
arouse the sentiment of the people of Kentucky in behalf of 
France against the alliance of England and Spain which, in 
fact, efifectively closed the Mississippi to the commerce of the 
West. Moreover, many Americans throughout the country — 
for the sentiment was by no means confined to Kentucky alone 
— felt most warmly towards France, the ally of America in 
the Revolution. 

This sentiment found free vent in the United States 
through the instrumentality of the "Democratic Clubs," ema- 
nating in especial from the Democratic Society of Philadel- 

(70) 



The Star of Empire 71 

phia, established early in 1793. As early as August of the 
same year, one of these clubs was organized in Lexington, 
Kentucky ; and soon similar organizations sprang up, in 
Georgetown, Paris, and other Kentucky towns. Through the 
instrumentality of these societies, sentiment was rapidly being 
developed and organized. When Genet landed at Charleston 
on April 8, 1793, he inaugurated a most vigorous and sensa- 
tional campaign of propaganda on behalf of the new French 
Republic. His meddlesome activities in the way of actually 
fitting out ships for the service of France against Eng- 
land, were effectually stopped by Washington's Proclama- 
tion of Neutrality (April 22, 1793). Blocked in this di- 
rection, he now turned his attention to the task of enlisting 
the sentiment of the entire country on the side of France. 
Receiving what he chose to regard as tacit encouragement 
from Jefferson, an ardent democrat and lover of France, 
Genet deliberately proceeded, by appealing direct to the peo- 
ple of the United States, to invoke the armed assistance of 
American citizens against the Spanish possessions in the 
Southwest. By recruiting an army against the Spaniards at 
New Orleans, Genet hoped to embroil the United States in a 
war with Spain and eventually with Spain's ally, England. 

The effect of Genet's machinations, carried on at first 
through his agent, Michaux, soon exhibited itself in Kentucky. 
Many prominent citizens, feeling embittered against Spain for 
the closure of the Mississippi, welcomed the opportunity to ex- 
press themselves in no uncertain terms ; and in October, 1793, 
the Democratic Society of Lexington went on record in a vio- 
lent resolution : — "That the right of the people on the waters of 
the Mississippi, to the navigation, was undoubted ; and . . . 
ought to be peremptorily demanded of Spain, by the govern- 
ment of the United States." A printed address, giving evi- 
dence of a plot being hatched in Philadelphia to enlist a force 
in Kentucky against the Spanish dominions on the Missis- 
sippi had come into the possession of the Commissioners of 
Spain as early as the summer of 1793 ; and following their 
complaint to the President, George Washington, Thomas Jef- 



72 The; Star of Empire 

ferson, Secretary of State, transmitted the address to Gov- 
eriior Shelby, in a letter (August 29, 1793), in which he says 
that the President desires "if you shall have reason to be- 
lieve any such enterprise meditated, that you put them on 
aieir guard against the consequence, as all acts of hostility com- 
mitted by them on nations at peace with the United States 
are forbidden by the laws and will expose them to punishment : 
And that in every event, you take those legal measures which 
shall be necessary to prevent any such enterprize." In his 
reply (October 5, 1793), Shelby says: "I think it my duty 
to take this early opportunity to assure you that I shall be 
particularly attentive to prevent any attempts of that nature 
from this country. I am well persuaded, at present, none 
such is in contemplation in this place. The citizens of Ken- 
tucky possess too just a sense of the obligations they owe 
the general government, to embark in any enterprize that 
would be so injurious to the United States." 

At the time of writing this letter. Governor Shelby was 
confident that no such enterprise was in contemplation in 
Kentucky; but he was soon to be undeceived. On November 
6 Jefferson again writes to Shelby, informing him that the four 
agents of France are Lachaise, Depeau, Mathurin and Gig- 
noux ; and urging him : first, to restrain the conspirators by 
law, if possible; but in case legal statutes should prove inade- 
quate to meet the situation, to suppress the expedition by the 
militia of the States, as had been ordered and practiced in 
the other States. In the same enclosure (of date November 
9, 1793), the Secretary of War addressed a letter to Governor 
Shelby in which he points out that the expedition in contem- 
plation, if permitted to proceed, would constitute a breach of 
neutrality, and consequently involve us in war with Spain ; and 
explicitly says : "The secretary of state has suggested how this 
design may be prevented by the usual course of the laws — but 
if this mode should be ineffectual, I am authorized by the 
president of the United States, to request that your excellency 
will use effectual military force to prevent the execution of the 
plan of the said Frenchmen, or any other persons who may 



The Star of Empire 73 

support, or abet their design. For the lawful expenses of 
which the United States will be held responsible." 

At about this same time (November 7, 1793) Arthur 
St. Clair, Governor of the Northwest Territory, writes Gov- 
ernor Shelby — informing him that George Rogers Clark had 
received a commission, from the government of France, and 
was about to raise a body of men in Kentucky to attack the 
Spanish settlements upon the Mississippi. He also informs 
Shelby of a report, which has reached him, that "a large sum 
of money, a paymaster, and a number of French officers, are 
arrived at the falls of Ohio ; and a number of boats for the 
expedition laid down." At the same time, St. Clair issued a 
proclamation warning the public of the designs of Lachaise, 
Depeau, Mathurin and Gignoux, and forbidding the citizens 
of the Northwest Territory to aid, abet or join them, in any 
attempt they may meditate against the Spanish settlements on 
the Mississippi. 

At the time of convening the legislature of Kentucky on 
November 6, Governor Shelby had not received the three let- 
ters above mentioned ; as he expressly states, he did not re- 
ceive the letters from the Secretary of State and the Secretary 
of War until late in December. Nor had he then any im- 
portant or tangible evidence that there was a serious movement 
on foot in Kentucky of the kind described. Moreover, he 
had no information of any detailed sort as to any efforts being 
made by the general government in behalf of Kentucky be- 
yond the vague and indefinite statement of Jefferson in his 
letter of August 29, 1793 : "In addition to considerations re- 
specting the peace of the general union, the special interests of 
the State of Kentucky would be particularly committed, as 
nothing could be more inauspicious to them than such a move- 
ment, at the very moment when those interests are under 
negotiation between Spain and the United States." That 
Governor Shelby did not, later in the session, make a special 
address to the legislature on the subjects is entirely compre- 
hensible, in view of the above facts. And in view of the 
lack of precise and detailed information, such an address 



74 The Star of Empire 

would have been, it seems, ill-advised and alarmist in char- 
acter. While appealing to the passions of the people, by giving 
credence to the sensational stories which at this time lacked 
proper authentification, such an address or a proclamation 
would had been powerless to allay the popular hostility to 
Spain and disaffection to the general government by the vague 
cryptic allusion of Jefferson to a "negotiation" then in prog- 
ress between the United States and Spain. 

Meantime, the agents of Genet had reached Kentucky, 
and immediately proceeded to sound Governor Shelby in re- 
gard to their extraordinary and unneutral project. Writing 
from Knob Lick, November 25, 1793, and addressing Shelby 
as "Citizen Governor," Lachaise expresses his regret at be- 
ing unable to deliver to the Governor in person "letters which 
I was intrusted with by the minister," and ventures the hope 
that he may see him at his (Shelby's) home, should he pay a 
visit there in the near future. Writing from the same place, 
on the same date, Charles Depeau informs the "Citizen Gov- 
ernor" that he has been despatched in company with more 
Frenchmen to join the expedition of the Mississippi, and con- 
tinues as follows : "As I am to procure the provisions, I am 
happy to communicate to you, whatever you shall think worthy 
of my motive, or in which your advice may be of use to me, as 
I hope I have in no way disobliged you; if I have, I will most 
willingly ask your pardon. For nobody can be more than I 
am willing for your prosperity and happiness. As some 
strange reports has reached my ears that your excellence has 
positive orders to arrest all citizens inclining to our assistance, 
and as my remembrance know by your conduct, in justice you 
will satisfy me in this uncommon request." From these two 
letters, it seems to be clear that these Frenchmen had been 
led to believe, perhaps by Senator Brown, of Philadelphia, 
that Governor Shelby, as an individual, was hostile to the Span- 
iards and favorable to the French. The purport of these pre- 
sumptuous letters is obviously to take the measure of the 
governor and learn from him the exact nature of his official 
disposition toward the proposed undertaking. In reply to this 



The Star of Empire 75 

second letter, Governor Shelby wrote from Frankfort, No- 
vember 28, stating the substance of the instructions he had 
received from the Secretary of State, and adding only these 
words : "To which charge I must pay that attention which my 
present situation obliges me." The phrase, "my present situ- 
ation," gives a somewhat dubious meaning to the governor's 
statement ; but one familiar with his style of expressing him- 
self, and with the formal phraseology of the day, recognizes 
the statement merely to mean : that whatever his personal 
feelings towards France as a nation might be, he would in his 
official capacity as Governor of Kentucky see that the laws 
of the country were enforced. It is highly probable that, at 
this time, Governor Shelby had not informed himself as to 
laws then on the statute books in Kentucky covering the case 
in question. Nor does it appear that he had resolved to in- 
voke the military power of the State should no legal remedy 
be available. 

On December 2, following the issuance of his proclamation 
of November 7, already referred to, Governor St. Clair re- 
ceived a letter from the Secretary of War "announcing the 
design of certain Frenchmen, to engage in some military ex- 
pedition against the possessions of Spain on the Mississippi — 
to set out from Kentucky." One week later he wrote to Gen- 
eral Wayne informing him of the receipt of this letter and of 
the fact that he had informed Governor Shelby of it — "in 
order that he might take such measures to prevent it, as he 
judged proper." On January 6, acting upon this advice. 
General Wayne wrote to Governor Shelby, placing at his dis- 
posal the squadron of horse, stationed between Georgetown 
and Lexington and under the command of Major W. Winston, 
for use in suppressing the French expedition. 

It is difficult to arrive at an exact estimate, at so remote a 
date, of the complexion of men's minds in a given circum- 
stance and the precise motives which prompt to decisive ac- 
tion. There is no reason to doubt that many of the leaders 
of Kentucky, including Shelby, as evidenced by his letter of 
January 13, 1794, printed below, felt very violently against 



76 The Star op Empire 

Spain and very warmly towards France. To these irascible 
and hot-blooded patriots dwelling upon the Western waters, 
that country which kept closed to their produce and free 
traffic the great highway of the Mississippi River was nothing 
less than an enemy country. While the membership of the 
Democratic clubs and societies in Kentucky are perhaps not 
fully known, certain it is that many prominent men, among 
which were included a number of Shelby's friends, were 
members of these organizations. It soon became plain to 
Shelby that the temper of the people at this time was very in- 
flammable; and he preferred to adopt a Fabian policy of 
"watchful waiting," rather than to adopt an aggressive policy 
of military suppression. 

With reference to the situation which had developed by 
an early date in January, 1794, Shelby himself says: "The 
subject now became serious and interesting, and required the 
most attentive consideration ; for although I felt no apprehen- 
sions that the intended expedition could be carried into eflfect, 
yet I entertained too high a sense of the obligations due to the 
General Government, to refuse the exercise of any powers 
with which I was clearly invested. After the most careful ex- 
amination of the subject, I was doubtful whether under the 
constitution and laws of my country, I possessed powers so 
extensive as those which I was called upon to exercise." 
Doubtless Governor Shelby referred the investigation as to 
the legal status of the case to his Secretary of State, James 
Brown, who was a member of the Democratic Society of Lex- 
ington ; but the dates of the letters exchanged between the 
two, which have been preserved, indicates that Brown con- 
curred with the views of the Governor, rather than that 
Shelby accepted the legal advice of his secretary. 

Below is Governor Shelby's famous letter of January 13, 
1794, to the Secretary of State of the United States : 

"Sir : After the date of my last letter to you, I received in- 
formation that a commission had been sent to General Clark, 
with power to name, and commission other officers, and to 
raise a body of men : no steps having been taken by him (as 



The Star of Empire 17 

far as has come to my knowledge) to carry this plan into 
execution I did not conceive, that it was either proper or neces- 
sary, for me to do anything in the business. 

"Two Frenchmen, Lachaise, and Depeau, have lately come 
into this State. I am told they declare publicly, they are in 
daily expectation of receiving a supply of money, and that 
as soon as they do receive it, they shall raise a body of men, 
and proceed with them down the river. 

"Whether they have any sufficient reason to expect to get 
such a supply, or any serious intention of applying it in that 
way, if they do receive it, I can form no opinion. 

"I judge it proper, as the president had directed you to 
write to me on this subject, to give you this information, that 
he may be apprised as fully as I am of the steps which 
have been, and are now taking here, in this matter. If the 
president should hereafter think it necessary to hold any fur- 
ther communication with the executive of this state on this 
subject, I wish him to be full, and explicit as to the part which 
he wishes and expects me to act. That if what is required of 
me should in my opinion be within my constitutional powers, 
and in the line of my duty, I may hereafter have it in my 
power to show that the steps which I may take were not only 
within my legal powers, but were also required by him. 

"I have great doubts, even if they (General Clark, and the 
Frenchmen) attempt to carry this plan into execution, (pro- 
vided they manage their business with prudence) whether 
there is any legal authority to restrain or to punish them ; at 
least before they have actually accomplished it. For if it is 
lawful for any one citizen of this state to leave it, it is equally 
so for any number of them to do it. It is also lawful for them 
to carry with them any quantity of provisions, arms, and am- 
munition. And if the act is lawful in itself, there is nothing 
but the particular intention with which it is done, that can 
possibly make it unlawful — but I know of no law which in- 
flicts punishment on intention only — or any criterion by which 
to decide what would be sufficient evidence of that intention : 
(even) if it was a proper subject of legal censure. 



78 The Star of Empire 

"I shall upon all occasions be averse to the exercise of any 
power which I do not consider myself as being clearly and 
explicitly invested with ; much less would I assume power, to 
exercise it against men, who I consider as friends, and breth- 
ren, in favour of a man, whom I view as an enemy, and a 
tyrant. 

"I shall also feel but little inclination to take an active part 
in punishing or restraining my fellow citizens for a supposed 
intention only — to gratify or remove the fears of the minister 
of a prince who openly withholds from us an invaluable right ; 
and who secretly instigates against us a most savage and 
cruel enemy. 

"But whatever may be my private opinion, as a man, as 
a friend to liberty, an American citizen, and an inhabitant of 
the western waters — I shall at all times hold it as my duty, 
to perform whatever may be constitutionally required of me 
as governor of , Kentucky, by the president of the United 
States." 

There can be no sort of doubt that this was a most extra- 
ordinary letter for the governor of a state to address to the 
Secretary of State of the United States. Moreover, it stands 
out in sharp contrast to Shelby's former letter (October 5, 
1793) to the Secretary of State. In a letter to General M. D. 
Hardin (July 1, 1812), Governor Shelby gives this explana- 
tion : "There is to be sure some inconsistency in my two letters 
to the Secretary of State of the United States, and I saw it at 
the time, but at the date of the last, I saw evidently that the 
whole scheme of Lachaise would fall to the ground without 
any interference, and that the present was a favourable one. 
while the apprehensions of the President were greatly excited, 
to express to him what I knew to be the general sentiments 
of the Kentucky people, relative to the navigation of the Mis- 
sissippi and the Spanish Government. . . ." Governor 
Shelby has clearly fallen into error, after the lapse of years, 
in his declaration that on January 15, 1794, he was assured of 
the failure of the Franco-American expedition against Louis- 
iana. At this very time. General George Rogers Clark was 



The Star of Empire 79 

circulating his "Proposals for raising volunteers &c." for this 
expedition throughout Kentucky ; and so favorably were these 
"Proposals" received that they were set forth, in full, in the 
Centinel of the Northwest Territory — Cincinnati, January 25, 
1794, and copied in the Kentucky Gazette of February 8, 
1794. They appear as follows: 

George R. Clark, Esq. 

Major General in the armies of France, and Commander 
in Chief of the French Revolutionary Legions on the Mis- 
sissippi River. 

PROPOSALS 

For raising the volunteers for the reduction of the Spanish 
posts on the Mississippi, for opening the trade of the said 
river, & giving freedom to its inhabitants, &c. 

All persons serving the expedition to be entitled to one 
thousand acres of Land — those that engage for one year, will 
be entitled to two thousand acres — if they serve two years or 
during the present war with France, they will have three 
thousand acres of any unappropriated Land that may be con- 
quered. The officers in proportion pay &c as other French 
troops. All lawful Plunder to be equally divided agreeable to 
the custom of War. All necessaries will be provided for the 
enterprize, and every precaution taken to cause the return of 
those who wish to quit the service, as comfortable as possible, 
and a reasonable number of days allowed them to return, at 
the expiration of which time their pay will cease. All per- 
sons will be commissioned agreeable to the number of men 
they bring into the field. Those that serve the expedition will 
have their choice of receiving their lands or one dollar per day. 

G. R. Clark. 

It was not until February 10 that Governor Shelby replied 
to the letter of General Anthony Wayne of January 6, pre- 
ceding. In it he says : "I can assure you that, there is not 
the smallest probability that such an enterprize will be attempt- 
ed; if it should, the Militia of this State, I am fully persuaded, 
are able and willing to suppress every attempt that can be 
made here to violate the laws of the Union." It is difficult to 
understand, today, though it may be true, how Governor 



80 The Star of Empire 

Shelby could have had access to sources of information so 
positive to the effect that the French enterprise would not even 
be attempted. On the contrary, it appears certain that it was 
a matter of general, and even public, knowledge that prepara- 
tions for the enterprise were well under way; and the pro- 
jectors of the enterprise were so emboldened by the favorable 
sentiment in Kentucky that Lachaise and Depeau had the te- 
merity to address the governor on the subject, and General 
Clark openly sent forth his proposals of volunteers, which 
doubtless were read by Governor Shelby two days before he 
wrote his reply to the letter of General Wayne. There is 
something equivocal, also, in his assurance ; for he had already 
expressed his doubts as to the existence of law on the statute 
books under which the courts could arrest the projected en- 
terprise. 

The actual fact would seem to be that Governor Shelby 
deliberately declined every invitation or proposal made to 
him by the General Government, either directly or through 
St. Clair and Wayne, to act upon his own unsupported au- 
thority as governor of Kentucky — either by invoking legal 
aid or military force. He delivered his ultimatum to the presi- 
dent of the United States, which practically amounted to this : 
I can find no law which empowers me to stop this expedition. 
If you wish it stopped legally, pass a national law that will 
cover the case. Moreover, I decline to call out the State 
militia to suppress an enterprise which may never materialize 
into action ; for premature or ill-advised action will agitate 
and inflame public sentiment in this State. If you want me 
to suppress the enterprise by force, command me to do so un- 
der the constitution and I will carry out such constitutional 
command. But I warn you now of this significant circum- 
stance : the people on the western waters are aroused against 
Spain and are uncompromising in their demands for such 
negotiations with Spain as will lead to the opening of the 
Mississippi River. 

Let us see, now, what was the actual result of Shelby's 
recalcitrant and somewhat defiant attitude in this whole mat- 



The Star of Empire 81 

ter. Several important consequences flowed from his letter of 
January 13, 1794. In the first place, an "act in addition to 
the act for the punishment of certain crimes against the United 
States" was brought before Congress "declaring, that to em- 
bark in an enterprize, such as was contemplated by the citi- 
zens of this State, should be considered as criminal, and di- 
recting what punishment should be inflicted on those who 
should be guilty of such an offence." In answer to Shelby's 
letter (January 13, 1794), Edmund Randolph wrote Shelby 
an extended letter (March 29, 1794), in the first part of which 
he attempts to show, without by any means complete success, 
that Governor Shelby "might with propriety comply with the 
instructions of the General Government" ; and in his message 
to the House of Representatives of Kentucky (November 15, 
1794) Shelby says: "From the necessity of passing that law 
(above referred to), I infer that my doubts as to criminality 
of the proposed enterprise were well founded, and that until 
the passage of that law (June 5, 1794), the ofifence had not 
been declared nor the punishment defined." 

It is clear that the President, from Shelby's letter of Jan- 
uary 13, 1794, feared that in his official capacity as Gov- 
ernor of Kentucky he was not disposed to take drastic ac- 
tion, either legal or military, in suppressing the projected ex- 
pedition. Accordingly, taking the matter into his own hands, 
he issued a proclamation (March 24, 1794), declaring: 
"Whereas I have received information that certain persons in 
violation of the laws, have presumed, under color of a for- 
eign authority, to enlist citizens of the United States and 
others within the State of Kentucky, and have there assembled 
an armed force for the purpose of invading and plundering the 
territory of a nation at peace with the said United States. . . . 
I have therefore thought proper to issue this proclamation, 
hereby solemnly warning every person not authorized by the 
laws, against enlisting any citizen or citizens of the United 
States, or levying troops or assembling any persons within the 
United States for the purpose aforesaid, or proceeding in any 
manner to the execution thereof, as they will answer the same 



82 The Star of Empire 

at their peril." Wasiiington took the additional step of di- 
recting General Wayne to "establish a strong military post 
at Fort Massac on the Ohio, and prevent by force, if neces- 
sary, the descent of any hostile party down that river." 

The recall of Genet, which had been effected through dip- 
lomatic channels, together with Washington's prompt and de- 
cisive manner cited above, dealt the final blow to the hopes of 
Clark, Lachaise, and their adherents. The gravity of the situ- 
ation, and the danger which had been averted, are exhibited in 
a letter of Lachaise to the Democratic Society of Lexington 
(May, 1794), in which he says "that causes unforeseen had 
put a stop to the march of two thousand brave Kentuckians, 
who were about to go and put an end to the Spanish despot- 
ism on the Mississippi, where Frenchmen and Kentuckians, 
united under the banners of France, might have made one 
nation, the happiest in the world — so perfect was their sym- 
pathy." 



CHAPTER XIII 
The Navigation of the Mississippi 

In an "Address to the Freemen of Kentucky," issued in the 
summer of 1812, during his campaign for the governorship, 
Governor Shelby declared that he wrote his letter of January 
13, 1794, having in view as one principal object to alarm the 
General Government regarding the Western people and their 
excited state concerning the question of the navigation of 
the Mississippi. "The attention of the General Government 
being thus drawn to the Western country, I deemed it a fa- 
vorable time to make an impression on their minds of the im- 
portance of the navigation of the Mississippi, and of the ne- 
cessity of attending to that subject. On that account and with 
that object, my letter of the 13th January, 1794, was calculated 
rather to increase than to diminish the apprehensions of the 
General Government as to the Western country. This letter 
had the effect desired, it drew from the Secretary of State 
information in relation to the navigation of the Mississippi, 
and satisfied us that the General Government was, in good 
faith, pursuing this object of first importance to the people 
of Kentucky. The information thus drawn forth quieted the 
public mind and restored harmony to the country." 

A more explicit setting forth of the negotiations is neces- 
sary here to a full understanding of this most important sub- 
ject. In his letter to Shelby of March 29, 1794, Edmund Ran- 
dolph says: "In December, 1791, it was verbally communicated 
to the Secretary of State by one of the Commissioners of Spain 
here, that his Catholic Majesty, apprised of our solicitude to 
have some arrangements made respecting our free navigation 
of the Mississippi, and the use of a port thereon, was ready 
to enter into a treaty at Madrid. . . . Instructions, com- 
prehensive, accurate and forcible were prepared by my pre- 
decessor; and if at this stage of the business, it were proper 
to develop them to public view, I should expect with certainty, 
that those who are the most ardent for the main object would 

(83) 



84 The Star of Empire 

pronounce that the executive has been deficient neither in 
vigilance nor exertions." 

The pressure of pubHc sentiment, aroused by the pro- 
nunciamentos of the Lexington Democratic Society, at length 
took form in the following action by the General Assembly 
of Kentucky (December 20, 1794) : — "Resolved, that the sen- 
ators in Congress be and they are hereby instructed to require 
information of the steps which have been taken to obtain the 
navigation of the river Mississippi and to transmit such in- 
formation to the executive of this State." On November 24, 
preceding, Thomas Pinckney had been commissioned by the 
Federal Government as envoy to Madrid, with instructions to 
negotiate a treaty securing the free navigation of the Mis- 
sissippi. And further to allay the excitement in Kentucky, 
the Senate of the United States passed a resolution providing: 

"That the President of the United States be, and he hereby 
is, requested to cause to be communicated to the executive 
of the State of Kentucky, such part of the existing negotiation 
between the United States and Spain, relative to this subject, 
as he may deem advisable and consistent with the course o^ 
negotiations." 

In pursuance of this resolution, the President appointed 
James Innes "a Special Commissioner to detail a faithful his- 
tory of the negotiations pending between the United States and 
the Court of Madrid respecting the navigation of the Missis- 
sippi." The exhaustive analysis made by the Special Com- 
missioner and transmitted to Governor Shelby, was published 
with accompanying documents in the Kentucky Gazette, 
March 14, 1795. The crux of the matter is contained in his 
statement that the President had decided not to "enter into 
any commercial relations with the Court of Madrid 'until our 
right to the free use of the Mississippi shall be most unequiv- 
ocally acknowledged and established, on principles never here- 
after to be drawn into contestation.' " 

The subsequent incidents in this matter, the further Span- 
ish intrigues engineered by Carondelet, the diplomatic negotia- 
tions of Pinckney, can find no place here. Sufifice it to say 



The; Star of Empire 85 

that on March 30, 1798, the Spanish troops evacuated the 
posts north of the boundary, the thirty-first meridian, estab- 
Hshed by the treaty; and at last "the pioneers of the West 
found themselves in the possession of the long coveted right 
of freely navigating the great river, which formed their only 
highway to the markets of the world." 

Isaac Shelby has been the target for severe criticism and 
bitter invective because of his stand in the matter of the 
French expedition and his apparent readiness to allow 
American neutrality to be violated and America compromised. 
But when we consider that the ultimate result of his famous 
letter of January 13, 1794 and of his subsequent acts was the 
opening to navigation of the Mississippi, we cannot but feel 
that this splendid achievement far outweighs the fault of al- 
leged luke-warmness in devotion to the national government 
in the matter of ordering the arrest of General Clark, La- 
chaise, Depeau, and the other leaders in the expedition. 

It was during Governor Shelby's term as first governor of 
Kentucky that General Wayne conducted his effective cam- 
paign against the Indians, culminating in the battle of Fallen 
Timbers and the treaty (August 3, 1795), by which the 
Northwestern tribes surrendered all claims south of the Ohio 
River. In his autobiographical account, Shelby says in 
speaking of the time when he assumed the ofifice of governor: 
"The country was then in a state of war, without funds of 
any description, every part of Kentucky was a frontier in- 
fested with a savage foe and the means of defense allowed by 
the government very weak and feeble, but from a perfect 
knowledge of the most exposed points of the frontier. Gov- 
ernor Shelby was so enabled to proportion the defense to the 
immediate danger of the different quarters of the State as to 
afford the best protection to the weak settlement which his 
limited means could possibly enable him to do, and prevented 
any considerable depredations from the barbarous foe which 
had before so greatly annoyed the country." With the final 
evacuation in May, 1796, of the British posts in the North- 
west, the cancerous source of strife between the Indians and 



86 The Star of Empire 

Americans was removed ; and from this time forward Ken- 
tucky began to lose its frontier character and enjoy the bene- 
fits of peace and prosperity. 

The coming of peace, the evacuation of the posts held by 
the British and the Spanish, the cessation of Spanish intrigue 
and conspiracy, the opening of the Mississippi and the secur- 
ing of the right of deposit for American goods in New Or- 
leans — these great blessings mark for Kentucky the close of 
the period of Westward expansion and herald the dawn of 
an era of great and prosperous statehood. 



LRBJl'22 



I PRINTERY, DURHAM^ N. C. 



